Act on Prohibition of Private Monopolization and
Maintenance of Fair Trade
(Act No. 54 of April 14, 1947)
Table of Contents
Chapter I General Provisions (Articles 1 and 2)
Chapter II Private Monopolization and Unreasonable Restraint of Trade
(Articles 3 to 7-2)
Chapter III Trade Associations (Articles 8 to 8-3)
Chapter III-2 Monopolistic Situations (Article 8-4)
Chapter IV Shareholdings, Interlocking Officers, Mergers, Splits, Share
Transfers and Acceptance of Assignments of Business (Articles 9 to 18)
Chapter V Unfair Trade Practices (Articles 19 to 20-7)
Chapter VI Exemptions (Articles 21 to 23)
Chapter VII Injunctions and Damages (Articles 24 to 26)
Chapter VIII Fair Trade Commission
Section 1 Establishment, Duty, Affairs under Jurisdiction and Organization,
Etc. (Articles 27 to 44)
Section 2 Proceedings (Articles 45 to 70-12)
Section 3 Miscellaneous Provisions (Articles 71 to 76)
Chapter IX Legal Actions (Articles 77 to 88)
Chapter XII Investigation of Criminal Cases, Etc. (Articles 101 to 118)
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Supplementary Provisions
Chapter I General Provisions
Article 1 The purpose of this Act is to promote fair and free competition,
stimulate the creative initiative of enterprises, encourage business activity,
heighten the level of employment and actual national income, and thereby
promote the democratic and wholesome development of the national economy
as well as secure the interests of general consumers by prohibiting private
monopolization, unreasonable restraint of trade and unfair trade practices,
preventing excessive concentration of economic power and eliminating
unreasonable restraints on production, sale, price, technology, etc. , and all
other unjust restrictions on business activity through combinations,
agreements, etc. ,.
Article 2 (1) The term "enterprise" as used in this Act means a person who
operates a commercial, industrial, financial or other business. Any officer,
employee, agent or other person who acts for the benefit of any enterprise is
deemed to be an enterprise with regard to the application of the provisions of
the following paragraph or of Chapter III.
(2) The term "trade association" as used in this Act means any combination or
federation of combinations of two or more enterprises having as its principal
purpose the furtherance of their common interests as enterprises and shall
include the following; provided, however, that a combination or federation of
combinations of two or more enterprises which has capital or contributions
made by the constituent enterprises, and whose principal purpose is to operate
and which is actually operating a commercial, industrial, financial or other
business for profit is not included:
(i) Any incorporated association or other association of which two or more
enterprises are members (including the equivalent thereof)
(ii) Any incorporated foundation or other foundation for which two or more
enterprises control the appointment and dismissal of officers or managers,
the management of affairs or continuation of its existence
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(iii) Any partnership for which two or more enterprises are partners, or any
contractual combination of two or more enterprises.
(3) The term "officer" as used in this Act means an officer, an executive officer, a
managing member, an inspector, an auditor, or an equivalent thereof, a
manager, or a chief of business of the main or branch office.
(4) The term "competition" as used in this Act means a state in which two or
more enterprises, within the normal scope of their business activities and
without making any material change to the facilities for, or kinds of, such
business activities, engage in, or are able to engage in, any act listed in the
following items.
(i) Supplying the same or similar goods or services to the same user
(ii) Receiving supplies of the same or similar goods or services from the same
supplier
(5) The term "private monopolization" as used in this Act means such business
activities, by which any enterprise, individually or by combination or
conspiracy with other enterprises, or by any other manner, excludes or controls
the business activities of other enterprises, thereby causing, contrary to the
public interest, a substantial restraint of competition in any particular field of
trade.
(6) The term "unreasonable restraint of trade" as used in this Act means such
business activities, by which any enterprise, by contract, agreement or any
other means irrespective of its name, in concert with other enterprises,
mutually restrict or conduct their business activities in such a manner as to fix,
maintain or increase prices, or to limit production, technology, products,
facilities or counterparties, thereby causing, contrary to the public interest, a
substantial restraint of competition in any particular field of trade.
(7) The term "monopolistic situation" as used in this Act means circumstances in
which each of the following market structures and negative effect in the
market exist in any particular field of business when the aggregate total value
(this term refers to the prices of the relevant goods less an amount equivalent
to the amount of taxes levied directly on such goods) of goods of the same
description (including goods capable of being supplied without making any
material change to the facilities for, or kinds of, such business activities;
hereinafter referred to as "particular goods" in this paragraph) and those of
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any other goods having an extremely similar function and utility thereto,
which are supplied in Japan (excluding those exported), or the total value (this
term refers to the prices of the relevant services less an amount equivalent to
the amount of taxes levied on the recipient of such services with respect
thereto) of services of the same description which are supplied in Japan, during
the latest one-year period designated by Cabinet Order, exceeds hundred
billion yen:
(i) A single enterprise's share of a field of business (meaning, out of the
aggregate volume (if calculation in terms of volume is not appropriate, out of
the aggregate value; hereinafter the same applies in this item) of the
particular goods and any other goods with an extremely similar function and
utility that are supplied in Japan (excluding those exported), or out of the
aggregate volume of the services that are supplied in Japan, the ratio of
particular goods and any other goods with an extremely similar function and
utility or services that are supplied by the enterprise; hereinafter the same
applies in this item) exceeding one-half or two enterprises' combined share of
a field of business exceeding three-fourths during the relevant one-year
period.
(ii) The existence of conditions that make it extremely difficult for any other
enterprise to newly enter said particular field of business.
(iii) The existence of a remarkable increase or of a slight decrease in the price
of the particular goods or services supplied by the relevant enterprise during
a considerable period of time in light of the changes in supply and demand,
and changes in the cost of supply, for the particular goods or services, and
the enterprise falling under any of the following items during said period.
(a) That said enterprise has made a profit at a rate far exceeding the profit
rate specified by Cabinet Order as the standard for the business type
specified by Cabinet Order to which said enterprise belongs
(b) That said enterprise has expended selling and general administrative
expenses which are considered to be far exceeding the standard selling and
general administrative expenses for the field of business to which said
enterprise belongs
(8) If a change in economic conditions results in an extreme change in domestic
shipments from producers and wholesale prices, the amount in the preceding
paragraph shall be separately provided for by Cabinet Order, in consideration
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of such conditions.
(9) The term "unfair trade practices" as used in this Act means an act falling
under any of the following items:
(i) Engaging, without justifiable grounds, in any of the following acts, in
concert with a competitor:
(a) Refusing to supply to a certain enterprise or restricting the quantity or
substance of goods or services supplied to a certain enterprise
(b) Causing another enterprise to refuse to supply a certain enterprise, or to
restrict the quantity or substance of goods or services supplied to a certain
enterprise
(ii) Unjustly and continually supplying goods or services at a price applied
differentially between regions or between parties, thereby tending to cause
difficulties to the business activities of other enterprises
(iii) Without justifiable grounds, continuously supplying goods or services at a
price far below the cost incurred to supply them, thereby tending to cause
difficulties to the business activities of other enterprises
(iv) Supplying goods to another party who purchases said goods from oneself
while imposing, without justifiable grounds, one of the restrictive terms
listed below:
(a) Causing said party to maintain the selling price of the goods that one has
determined, or otherwise restricting said party's free decision on selling
price of the goods
(b) Having said party cause an enterprise that purchases the goods from said
party maintain the selling price of the goods that one has determined, or
otherwise causing said party to restrict said enterprise's free decision on
the selling price of the goods.
(v) Engaging in any act specified in one of the following by making use of one's
superior bargaining position over the counterparty unjustly, in light of
normal business practices:
(a) Causing said counterparty in continuous transactions (including a party
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with whom one newly intends to engage in continuous transactions; the
same applies in (b) below) to purchase goods or services other than those to
which said transactions pertain
(b) Causing said counterparty in continuous transactions to provide money,
services or other economic benefits
(c) Refusing to receive goods in transactions with said counterparty, causing
said counterparty to take back such goods after receiving them from said
counterparty, delaying payment to said counterparty or reducing the
amount of payment, or otherwise establishing or changing trade terms or
executing transactions in a way disadvantageous to said counterparty
(vi) Any act falling under any of the following items, which tends to impede fair
competition and which is designated by the Fair Trade Commission, other
than the acts listed in the preceding items:
(a) Unjustly treating other enterprises in a discriminatory manner
(b) Engaging in transactions at an unjust price
(c) Unjustly inducing or coercing the customers of a competitor to deal with
one
(d) Dealing with another party on such conditions as will unjustly restrict
the business activities of said counterparty
(e) Dealing with the counterparty by making use of one's superior bargaining
position unjustly
(f) Unjustly interfering with a transaction between an enterprise in
competition with one in Japan or a corporation of which one is a
shareholder or an officer and another transaction counterparty; or, if such
enterprise is a corporation, unjustly inducing, instigating or coercing a
shareholder or officer of such corporation to act against the corporation's
interests.
Chapter II Private Monopolization and Unreasonable Restraint of Trade
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Article 3 An enterprise must not effect private monopolization or unreasonable
restraint of trade.
Article 4 and Article 5 Deleted.
Article 6 An enterprise must not enter into an international agreement or an
international contract which contains such matters as fall under unreasonable
restraint of trade or unfair trade practices.
Article 7 (1) Whenever an act in violation of the provisions of Article 3 or the
preceding Article occurs, the Fair Trade Commission may, pursuant to the
procedures provided in Section 2 of Chapter VIII, order the relevant enterprise
to cease and desist the relevant act, to transfer a part of the relevant
enterprise's business, or to take any other measures necessary to eliminate the
act in violation of said provisions.
(2) Whenever the Fair Trade Commission finds it to be particularly necessary,
even if an act in violation of the provisions of Article 3 or the preceding Article
has already ceased to exist, the Fair Trade Commission may, pursuant to the
procedures provided for in Section 2 of Chapter VIII, order the following person
to take measures to publicize that the act has been discontinued and to take
any other measures necessary to ensure elimination of said act; provided,
however, that this does not apply if five years have passed since the date of
discontinuation of said act.
(i) Enterprises who committed said act
(ii) If the enterprise who committed said act is a juridical person, any juridical
person surviving, or established as a result of the merger said enterprise
ceased to exist
(iii) If the enterprise who committed said act is a juridical person, any juridical
person who has acquired all or part of the business involving said act from
said enterprise by virtue of a company split
(iv) Any enterprise who has acquired all or part of the business involving said
act from the enterprise who committed said act
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Article 7-2 (1) If an enterprise unreasonably restrains trade or enters into an
international agreement or an international contract containing particulars
that fall under unreasonable restraint of trade in a category under any of the
following items, the Fair Trade Commission shall order the enterprise,
pursuant to the procedures as provided in Section 2 of Chapter VIII, to pay to
the national treasury a surcharge of an amount equivalent to ten percent
(three percent for a retail business, or two percent for a wholesale business) of
the amount of sales from the relevant goods or services (or of the purchase
amount of the goods or services, calculated using the method provided by
Cabinet Order, if the relevant act involves being supplied goods or services),
calculated using the method provided by Cabinet Order, for the period from the
date on which the enterprise began implementing the act in violation in its
business activities to the date on which it stopped implementing the act in
violation in its business activities (if the period exceeds three years, during the
three years preceding the date on which the business activities constituting
said act were discontinued; hereinafter referred to as "period of
implementation"); provided, however, that if the amount thus calculated is less
than one million yen, the Commission may not order the payment of such a
surcharge.
(i) Those related to the price of goods or services;
(ii) Those that substantially restrain any of the following with respect to goods
or services and thereby affecting their price:
(a) Supply or purchase volume
(b) Market share
(c) Transaction counterparties
(2) The provisions of the preceding paragraph apply mutatis mutandis to when
an enterprise effects private monopolization (limited to that arising from the
control of the business activities of other enterprises) that falls under either of
the following items with respect to goods or services supplied by said other
enterprises (hereinafter referred to as "controlled enterprises" in this
paragraph). In this case, the term "the amount of sales from the relevant goods
or services (or of the purchase amount of the goods or services, calculated using
the method provided by Cabinet Order, if the relevant act involves being
supplied goods or services), calculated using the method provided by Cabinet
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Order" in the preceding paragraph is deemed to be replaced with "the amount
of sales from the relevant goods or services supplied by said enterprise to the
controlled enterprises (including goods or services necessary for the controlled
enterprises to supply the goods or services in the particular field of trade
related to said act) and of the goods or services supplied by the enterprise in
the particular field of trade (excluding those supplied to controlled enterprises)
calculated using the method provided by Cabinet Order," and the term "(three
percent for a retail business, or two percent for a wholesale business)" is
deemed to be replaced with "(three percent if the enterprise engages in retail
business or two percent if the enterprise engages in wholesale business)."
(i) That involving prices;
(ii) That which substantially restrains any of the following and thereby affects
prices:
(a) Supply volume
(b) Market share
(c) Transaction counterparties
(3) The term "market share" provided in the preceding two paragraphs and
paragraph (8) means the ratio of the volume of goods or services that one or
two or more enterprises supply or receive supply of, to the aggregate total
volume of said goods or services supplied in any particular field of trade within
a particular period, or the ratio of the value of goods or services that one or two
or more enterprises supply or receive supply of, to the aggregate total value of
said goods or services supplied in any particular field of trade within a
particular period.
(4) If an enterprise has engaged in private monopolization (limited to that
engaged in by excluding the business activities of other enterprises, and
excluding that that which falls under the provisions of paragraph (2)), the Fair
Trade Commission shall order the enterprise, pursuant to the procedures
provided in Chapter VIII, Section 2, to pay to the national treasury a surcharge
in an amount equivalent to six percent (two percent if said enterprise engages
in the retail business, or one percent if said enterprise engages in the
wholesale business) of the amount of sales for goods or services supplied by the
enterprise in any particular field of trade through the act (excluding goods or
services supplied to other enterprises that supply goods or services in said
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particular field of trade) and of the amount of sales for goods or services
supplied by the enterprise to other enterprises that supply goods or services in
said particular field of trade (including goods or services that are necessary in
order for said other enterprises to supply said goods or services in said
particular field of trade), both of which are calculated using the method
provided by Cabinet Order, during the period from the date on which the
enterprise began to engage in the act to the date on which it stopped engaging
in the act (if this period exceeds three years, it is deemed to be the three years
preceding the date on which the enterprise stopped engaging in the act;
referred to as the "Violation Period" in paragraph (27)); provided, however,
that if the amount thus calculated is less than one million yen, the Commission
may not order the payment of such a surcharge.
(5) In a case under paragraph (1), if the enterprise falls under any of the
following items, the term "ten percent" appearing in that paragraph is deemed
to be replaced with "four percent," the term "three percent" is deemed to be
replaced with "one point two percent," and the term "two percent" is deemed to
be replaced with "one percent":
(i) Any company whose amount of stated capital or total contribution amount is
not more than three hundred million yen and any company or individual
whose number of regular employees is not more than three hundred, which
operates as its principal business, a manufacturing, construction,
transportation or other business (excluding the business types listed in items
(ii) to (iv) inclusive and the business types provided by Cabinet Order
pursuant to item (v)).
(ii) Any company whose amount of stated capital or total contribution amount
is not more than one hundred million yen and any company or individual
whose number of regular employees is not more than one hundred, which
operates a wholesale business (excluding business types provided by Cabinet
Order pursuant to item (v)) as its principal business.
(iii) Any company whose amount of stated capital or total amount of
contribution is not more than fifty million yen and any company or
individual whose number of regular employees is not more than one hundred,
which operates as its principal business, business belonging to service
business (excluding the business types provided by Cabinet Order pursuant
to item (v)).
(iv) Any company whose amount of stated capital or total amount of
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contribution is not more than fifty million yen and any company or
individual whose number of regular employees is not more than fifty, which
operates as its principal business, business belonging to retail business
(excluding the business types provided by Cabinet Order pursuant to the
following item).
(v) Any company whose amount of stated capital or total amount of
contribution is not more than the amount provided by Cabinet Order for each
of its business types and any company or individual whose number of regular
employees is not more than the number provided by Cabinet Order for each
of its business types, which operates as its principal business, business
belonging to any of the business types provided by Cabinet Order.
(vi) Of cooperative partnerships and other partnerships established pursuant
to special Acts with the principal purpose of company in business (including
federation of partnerships), any partnership which has a scale comparable to
the scale provided in each of the preceding items for the individual business
type in the preceding items as provided by Cabinet Order.
(6) If an enterprise is ordered to pay a surcharge pursuant to the provisions of
paragraph (1), the term "ten percent" appearing in paragraph (1) is deemed to
be replaced with "eight percent," the term "three percent" is deemed to be
replaced with "two point four percent," the term "two percent" is deemed to be
replaced with "one point six percent," the term "four percent" in the preceding
paragraph is deemed to be replaced with "three point two percent," the term
"one point two percent" is deemed to be replaced with "one percent," and the
term "one percent" is deemed to be replaced with "zero point eight percent" if
the enterprise had stopped engaging in the relevant violation (limited to when
the period of implementation for the violation is less than two years) by the
day one month prior to the date on which the measure listed in Article 47,
paragraph (1), item (iv) or the measure provided in Article 102, paragraph (1)
was first taken for the case connected with said violation (hereinafter referred
to as "investigation start date" in this Article) (if the measure is not taken, the
day one month prior to the date on which the enterprise received notification in
connection with the violation pursuant to the provisions of Article 50,
paragraph (1) as applied mutatis mutandis by replacing certain terms
pursuant to Article 62, paragraph (4) (hereinafter referred to as "advance
notification" in the next paragraph, paragraph (10) and Articles 20-2 to 20-5
inclusive)); provided, however, that this does not apply if the enterprise is
subject to the application of provisions of the following paragraphs (7), (8) and
(9).
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(7) If an enterprise is ordered to pay a surcharge pursuant to the provisions of
paragraph (1) (including when these are applied mutatis mutandis by replacing
certain terms pursuant to paragraph (2); hereinafter the same applies in this
paragraph and in paragraphs (19), (22) and (23)) or pursuant to the provisions
of paragraph (4), the term "ten percent" appearing in paragraph (1) is deemed
to be replaced with "fifteen percent," the term "three percent" is deemed to be
replaced with "four point five percent," the term "two percent" is deemed to be
replaced with "three percent," the term "six percent" appearing in paragraph
(4) is deemed to be replaced with "nine percent," the term "two percent" is
deemed to be replaced with "three percent," the term "one percent" is deemed
to be replaced with "one point five percent," the term "four percent" appearing
in paragraph (5) is deemed to be replaced with "six percent," the term "one
point two percent" is deemed to be replaced with "one point eight percent," and
the term "one percent" is deemed to be replaced with "one point five percent," if
the enterprise falls under any of the following items; provided, however, that
this does not apply if the enterprise is subject to application of the provisions of
paragraph (9).
(i) A person that was subject to an order pursuant to the provisions of
paragraph (1) or (4) (limited to when the order has become final and binding;
the same applies in the following item), or a person that has received a notice
pursuant to the provisions of paragraph (18) or (21), or a person that was
subject to decision pursuant to the provisions of Article63, paragraph (2)
within the ten years prior to the investigation start date.
(ii) A person that was subject to an order pursuant to the provisions of
paragraph (1) or (4), a person that has received a notice pursuant to the
provisions of paragraph (18) or (21), or a person that was subject to a
decision pursuant to the provisions of Article 63, paragraph (2) within the
ten years prior to the date on which the enterprise received advance
notification in connection with a violation if neither the measure listed in
Article 47, paragraph (1), item (iv) nor the measure provided in Article 102,
paragraph (1) was taken.
(8) If an enterprise is ordered to pay a surcharge pursuant to the provisions of
paragraph (1), the term "ten percent" appearing in paragraph (1) is deemed to
be replaced with "fifteen percent," the term "three percent" is deemed to be
replaced with "four point five percent," the term "two percent" is deemed to be
replaced with "three percent," the term "four percent" appearing in paragraph
(5) is deemed to be replaced with "six percent," the term "one point two
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percent" is deemed to be replaced with "one point eight percent," and the term
"one percent" is deemed to be replaced with "one point five percent," if the
enterprise falls under any of the following items; provided, however, that this
does not apply if the enterprise is subject to application of provisions of
following paragraph.
(i) A person that planned to engage in a violation and required, requested or
instigated another enterprise to engage in, or not to discontinue, a violation,
either individually or in concert with others, thereby causing the other
enterprise to engage in, or not to discontinue, a violation
(ii) A person that has, at the request of another enterprise, designated a price,
supply volume, purchase volume, market share or transaction counterparty
in relation to the goods or services involved in the violation, continuously to
other enterprise, either individually or in concert with others
(iii) A person that has committed any of the following acts to materially
facilitate said violation, ether individually or in concert with others, in
addition to the person listed in the preceding two items
(a) Requiring, requesting or instigating another enterprise to perform, or not
to discontinue, said violation
(b) Designating price, supply volume, purchase volume, market share or a
transaction counterparty to another enterprise in connection with the
goods or services involved in the violation, or about business activities
constituting the violation (excluding designations exclusively about one's
own transactions)
(9) If an enterprise is ordered to pay a surcharge pursuant to the provisions of
paragraph (1), the term "ten percent" appearing in paragraph (1) is deemed to
be replaced with "twenty percent," the term "three percent" is deemed to be
replaced with "six percent," the term "two percent" is deemed to be replaced
with "four percent," the term "four percent" appearing in paragraph (5) is
deemed to be replaced with "eight percent," the term "one point two percent" is
deemed to be replaced with "two point four percent," and the term "one
percent" is deemed to be replaced with "two percent," if the enterprise falls
under any of the items in paragraph (7) and any of the items in the preceding
paragraph.
(10) Notwithstanding the provisions of paragraph (1), the Fair Trade Commission
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may not order an enterprise that is to pay a surcharge pursuant to the
provisions of paragraph (1) to pay the surcharge if the enterprise falls under
both of the following items:
(i) The enterprise is the first among the enterprises who committed the
relevant violation to individually submit reports and materials regarding the
facts of the violation to the Fair Trade Commission pursuant to the
provisions of the Rules of the Fair Trade Commission (excluding when the
reports and materials are submitted on or after the investigation start date
(or the date on which the enterprise received an advance notification in
connection with the violation if neither the measure listed in Article 47,
paragraph (1), item (iv) nor the measure provided in Article 102, paragraph
(1) was taken; the same applies in the following item, the following
paragraph and paragraph (25)) for the case connected with the violation).
(ii) The enterprise has not committed the relevant violation since the
investigation start date for the case connected with the violation.
(11) In a case under paragraph (1), the Fair Trade Commission shall reduce the
relevant surcharge by fifty percent of the surcharge calculated pursuant to the
provisions of paragraph (1) or paragraphs (5) to (9) inclusive, if the enterprise
falls under items (i) and (iv) of this paragraph, or by thirty percent of the
surcharge calculated pursuant to the provisions of paragraph (1) or paragraphs
(5) to (9) inclusive, if the enterprise falls under items (ii) and (iv) or items (iii)
and (iv) of this paragraph:
(i) The enterprise is the second among the enterprises who committed the
relevant violation to have individually submitted reports and materials
regarding the facts of the violation to the Fair Trade Commission pursuant
to the provisions of the Rules of the Fair Trade Commission (excluding when
the reports and materials are submitted on or after the investigation start
date for the case connected with said violation).
(ii) The enterprise is the third among the enterprises who committed the
violation to have individually submitted reports and materials regarding the
facts of the violation to the Fair Trade Commission pursuant to the
provisions of the Rules of the Fair Trade Commission (excluding when said
reports and materials are submitted on or after the investigation start date
for the case connected with said violation).
(iii) The enterprise is the fourth or fifth among the enterprises that committed
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the violation to individually submit reports and materials regarding the facts
of the violation (excluding reports and materials related to the facts already
ascertained by the Fair Trade Commission through the report provided in
Article 45, paragraph (1), or the measures as provided in paragraph (4) of the
same Article, or other means) to the Fair Trade Commission pursuant to the
provisions of the Rules of the Fair Trade Commission (excluding when said
reports and materials are submitted on or after the investigation start date
for the case connected with said violation).
(iv) The enterprise has not committed the relevant violation since the
investigation start date for the case connected with said violation.
(12) In a case under paragraph (1), the Fair Trade Commission shall reduce the
relevant surcharge by thirty percent of the surcharge calculated pursuant to
the provisions of paragraph (1) or (5) to (9) inclusive for an enterprise that
committed the relevant violation and that falls under both of the following
items, if the enterprises who submitted reports and materials regarding the
relevant violation pursuant to the provisions of item (i) of paragraph (10) or
item (i) to (iii) of the preceding paragraph number fewer than five (limited to
when the sum of the enterprises who submitted reports and materials
pursuant to the provisions of item (i) of paragraph (10) or item (i) to (iii) of the
preceding paragraph and the enterprises who submitted reports and materials
pursuant to the provisions of item (i) below number five or fewer, and when the
total number of enterprises who submitted reports and materials pursuant to
the provisions of item (i) below is three or fewer):
(i) The enterprise individually submitted reports and materials regarding the
facts of the violation (excluding reports and materials related to the facts
already ascertained by the Fair Trade Commission through the measures
listed in the items under Article 47, paragraph (1) or provided in Article 102,
paragraph (1), or other means) to the Fair Trade Commission pursuant to the
provisions of the Rules of the Fair Trade Commission, by the date set in the
Rules of the Fair Trade Commission on or after the investigation start date
for the case connected with said violation.
(ii) The enterprise other than who has not committed the relevant violation
since the date of submission of the reports and materials pursuant to the
preceding item.
(13) If two or more enterprises (limited to when the enterprises are corporations)
that have violated paragraph (1) have jointly submitted reports and materials
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regarding the facts of said violation to the Fair Trade Commission pursuant to
the provisions of the Rules of the Fair Trade Commission, said reports and
materials are deemed to have been submitted individually and the provisions
of the preceding three paragraphs apply to the two or more enterprises who
have submitted said reports and materials, as long as the two or more
enterprises fall under item (i) below and either item (ii) or (iii) below. In such
cases, the two or more enterprises are deemed to be a single enterprise for the
purposes of the calculation of the number of enterprises who have submitted
the reports and materials under the provisions of paragraph (10), item (i),
paragraph (11), items (i) to (iii) inclusive and item (i) of the preceding
paragraph.
(i) That, at the time of the submission of said reports and materials, the two or
more enterprises are related as co-subsidiaries, etc. (meaning subsidiaries
(meaning corporations for which the majority of the voting rights (excluding
voting rights from shares for which voting rights cannot be exercised for all
matters on which a resolution can be passed at the shareholders meeting, but
including voting rights from shares that are deemed to confer voting rights
pursuant to the provisions of Article 879, paragraph (3) of the Companies Act
(Act No. 86 of 2005); hereinafter the same applies) of all shareholders
(including all members; the same applies hereinafter) are held by another
corporation. In such cases, if another corporation and one or more of its
subsidiaries or if one or more subsidiaries of a corporation hold the majority
of shareholders' voting rights in another corporation, the other corporation is
deemed to be a subsidiary of said corporation; the same applies hereinafter
in this paragraph), a parent company of an enterprise (meaning another
corporation of which the corporation is a subsidiary; the same applies in this
item) of an enterprise, or another corporation whose parent company is the
same as that of the enterprise; the same applies in the following item and
paragraph (25)).
(ii) That, among said two or more enterprises, the one that committed the
violation in concert with another of the two or more enterprises was related
to the other enterprise as a co-subsidiary, etc. for the entire period during
which it committed said violation concert with the other enterprise (limited
to within five years preceding the date on which said reports or materials
were submitted).
(iii) That a fact that falls under either of the following exists with regard to one
of the two or more enterprises that has not committed the violation in
concert with another of said two or more enterprises:
16
(a) The enterprise has transferred all or part of the business involved in the
violation to another enterprise of said two or more enterprises or has
alienated all or part of the business involved in the violation through a
company split, and said other enterprise commenced said violation on the
date of said transfer or of said company split.
(b) The enterprise has received all or part of the business connected to the
violation from another enterprise of said two or more enterprises or has
succeeded to all or part of the business connected to said violation through
a company split, and first committed the violation on the date of said
transfer or of said company split.
(14) In a case under the preceding paragraph, the voting rights held by a
corporation or the voting rights held by a corporation and any one or more of
its subsidiaries or by any one or more subsidiaries of a corporation shall
include the voting rights from shares that cannot be duly asserted against the
issuer pursuant to the provisions of Article 147, paragraph (1) or Article 148,
paragraph (1) of the Act on Book-Entry Transfer of Company Bonds, Shares,
etc. (Act No. 75 of 2001).
(15) Whenever the Fair Trade Commission receives the submission of reports and
materials pursuant to the provisions of item (i) of paragraph (10), items (i) to
(iii) inclusive of paragraph (11), or item (i) of paragraph (12), the Fair Trade
Commission shall promptly notify the enterprise that submitted said reports
and materials to that effect in writing.
(16) Prior to issuing an order pursuant to the provisions of paragraph (1) or a
notice pursuant to the provisions of paragraph (18) or (21) to an enterprise that
falls under any of the provisions of paragraphs (10) to (12) inclusive, the Fair
Trade Commission may additionally request said enterprise to submit reports
or materials regarding the facts of the violation.
(17) If the Fair Trade Commission finds that a fact falling under any of the
following items exists before issuing an order pursuant to the provisions of
paragraph (1) or a notice pursuant to the provisions of next paragraph to an
enterprise that submitted reports and materials pursuant to the provisions of
item (i) of paragraph (10), items (i) to (iii) inclusive of paragraph (11), or item
(i) of paragraph (12), these provisions do not apply, notwithstanding the
provisions of paragraphs (10) to (12) inclusive:
17
(i) The reports or materials submitted by the enterprise (meaning the
enterprise and any one or more other enterprises that submitted the reports
and materials jointly with the enterprise, if the relevant enterprise is the
person who submitted the reports and materials pursuant to the provisions
of paragraph (13); the same applies in the following item) contained false
information.
(ii) In a case under the preceding paragraph, said enterprise fails to submit the
requested reports or materials or submits false reports or materials.
(iii) In the case connected with the violation committed by the relevant
enterprise, said enterprise coerced another enterprise (if the enterprise is the
person that submitted the reports and materials pursuant to the provisions
of paragraph (13), among the enterprise and any other one or more
enterprises that submitted the reports and materials jointly with the
enterprise, one that has coerced an enterprise other than the relevant
enterprise and other than any other enterprise that submitted the reports
and materials jointly with the enterprise) to commit the violation provided in
paragraph (1) or blocked another enterprise from discontinuing said violation.
(18) If the Fair Trade Commission has decided not to order the payment of a
surcharge pursuant to the provisions of paragraph (10), it shall notify the
relevant enterprise in writing of that decision at the time it issues an order,
pursuant to the provisions of paragraph (1), to enterprises other than the
enterprise regarding the case connected with the violation committed by the
enterprises who fall under the provisions of paragraph (10) (by the time
provided in the Rules of the Fair Trade Commission if the Fair Trade
Commission does not issue an order pursuant to the provisions of paragraph
(1)).
(19) In the case under paragraph (1) or (4), if a final and binding decision on the
same case sentences the relevant enterprise to a fine, instead of the amount
calculated pursuant to the provisions of paragraphs (1), (4) to (9) inclusive, (11)
or (12), the Fair Trade Commission shall deduct from said amount the amount
equivalent to one-half of the amount of said fine; provided, however, that this
does not apply if the surcharge amount calculated pursuant to the provisions of
paragraphs (1), (4) to (9) inclusive, (11) or (12) does not exceed the amount
equivalent to one-half of the amount of said fine, or if the surcharge amount
after said deduction is less than one million yen.
(20) In the case under the proviso to the preceding paragraph, the Fair Trade
18
Commission may not order payment of a surcharge.
(21) If the Fair Trade Commission does not order payment of a surcharge
pursuant to the provisions of the preceding paragraph, it shall notify the fined
enterprise to that effect in writing upon issuing an order pursuant to the
provisions of paragraph (1) (including when these are applied mutatis
mutandis by replacing certain terms pursuant to paragraph (2)) or paragraph
(4) to enterprises other than said enterprise regarding the case connected with
the violation provided in paragraph (1), (2) or (4) committed by said enterprise
(by the deadline provided for in the Rules of the Fair Trade Commission if the
Fair Trade Commission does not issue an order pursuant to these provisions).
(22) Any enterprise who has received an order pursuant to the provisions of
paragraph (1) or (4) shall pay the surcharge calculated pursuant to the
provisions of paragraphs (1), (4) to (9) inclusive, (11), (12) or (19).
(23) If the amount of surcharge calculated pursuant to the provisions of
paragraphs (1), (4) to (9) inclusive, (11), (12) or (19) includes numbers to the
right of the ten thousands place, the surcharge is rounded down to the nearest
ten thousand yen.
(24) If an enterprise that has committed a violation provided in paragraph (1), (2)
or (4) is a juridical person and if said juridical person has ceased to exist by
virtue of a merger, the violation committed by said juridical person and any
order pursuant to the provisions of paragraph (1) (including when these are
applied mutatis mutandis by replacing certain terms pursuant to paragraph
(2)) and paragraph (4), notice pursuant to the provisions of paragraphs (18)
and (21), or decision pursuant to the provisions of Article 63, paragraph (2),
received by the juridical person (hereinafter referred to as an "order, etc." in
this paragraph and the following paragraph) is deemed to be a violation
committed by the juridical person surviving, or established as a result of the
merger, or an order, etc. received by the juridical person surviving, or
established as a result of the merger for the purpose of application of the
provisions of the preceding paragraphs and the following paragraph.
(25) If an enterprise that has committed a violation provided for in paragraph (1),
(2) or (4) is a juridical person and the juridical person transferred all of the
business connected with the violation to any one or more of its subsidiaries, etc.
on or after the investigation start date for the case connected with said
violation, or if the juridical person (limited to a corporation) had any one or
more of its subsidiaries, etc. succeed to all of the business connected with the
19
violation through a company split on or after the investigation start date for
the case connected with the violation, and ceased to exist due to a reason other
than merger, the violation committed by the juridical person and the order, etc.
received by the juridical person is deemed to be a violation committed by the
subsidiary, etc. to whom all or part of the relevant business has been
transferred or who has succeeded to all or part of the relevant business
through a company split (hereinafter referred to as a "subsidiary, etc. that has
succeeded to specified business") or to be an order, etc. received by the
subsidiary, etc. that has succeeded to specified business, respectively, for the
purpose of application of the provisions of the preceding paragraphs. In this
case, if there are two or more subsidiaries, etc. that have succeeded to the
specified business, the term "order the enterprise" appearing in paragraph (1)
(including when it is applied mutatis mutandis by replacing certain terms
pursuant to paragraph (2)) is deemed to be replaced with "order the subsidiary,
etc. that has succeeded to the specified business (meaning the subsidiary, etc.
that has succeeded to specified business as provided in paragraph (25); the
same applies hereinafter), jointly and severally with any other subsidiary, etc.
that has succeeded to the specified business and that has received an order
pursuant to the provisions of this paragraph (including when these are applied
mutatis mutandis by replacing certain terms pursuant to the following
paragraph)," the term "order the enterprise" appearing in paragraph (4) is
deemed to be replaced with "order the subsidiary, etc. that has succeeded to
the specified business, jointly and severally with another subsidiary, etc. that
has succeeded to the specified business and that has received an order
pursuant to the provisions of this paragraph," and the term "Any enterprise
who has received an order pursuant to the provisions of paragraph (1) or (4)
shall pay" appearing in paragraph (22) is deemed to be replaced with "Any
subsidiary, etc. that has succeeded to specified business and that has received
an order pursuant to the provisions of paragraph (1) or (4) shall pay, jointly
and severally with any other subsidiary, etc. that has succeeded to specified
business and that has received an order pursuant to these provisions."
(26) In a case under the preceding two paragraphs, matters necessary for the
application of the provisions of paragraphs (10) to (12) inclusive are provided
by Cabinet Order.
(27) After five years have passed since the end of the period of implementation
(or since the end of the Violation Period, for a violation as provided in
paragraph (4)), the Fair Trade Commission may not order payment of a
surcharge for the relevant violation.
20
Chapter III Trade Associations
Article 8 A trade association must not engage in any act which falls under any of
the following items:
(i) Substantially restraining competition in any particular field of trade
(ii) Entering into an international agreement or an international contract as
provided in Article 6
(iii) Limiting the present or future number of enterprises in any particular
field of business
(iv) Unjustly restricting the functions or activities of the constituent
enterprises (meaning an enterprise who is a member of the trade association;
the same applies hereinafter)
(v) Inducing enterprises to employ such act as falls under unfair trade
practices
Article 8-2 (1) Whenever an act in violation of the provisions of the preceding
Article occurs, the Fair Trade Commission may, pursuant to the procedures
provided for in Section 2 of Chapter VIII, order the relevant trade association
to cease and desist said act, to dissolve, or to take any other measures
necessary to eliminate said act.
(2) The provisions of Article 7, paragraph (2) apply mutatis mutandis to any act
in violation of the provisions of the preceding Article.
(3) Whenever the Fair Trade Commission orders a trade association to take
measures provided in Article 7, paragraph (1) or (2), as applied mutatis
mutandis pursuant to the preceding paragraph, if the Fair Trade Commission
finds it to be particularly necessary, it may, pursuant to the procedures as
provided in Section 2 of Chapter VIII, order an officer, manager or constituent
enterprise (including the relevant enterprise if an officer, employee, agent or
any other person acting for the benefit of an enterprise is a constituent
enterprise; the same applies in Article 26, paragraph (1)) of said association to
also take measures necessary to ensure the measures provided in Article 7,
21
paragraph (1) or (2), as applied mutatis mutandis pursuant to the preceding
paragraph.
Article 8-3 The provisions of Article 7-2, paragraphs (1), (3), (5) and (6)
(excluding proviso), (10) to (18) inclusive (excluding paragraph (13), items (ii)
and (iii)), and paragraphs (22), (23), and (27) apply mutatis mutandis to cases
in which an act is committed in violation of the provisions of Article 8, item (i)
(limited to when an act is committed that constitutes an unreasonable
restraint of trade) or item (ii) thereof (limited when an international
agreement or an international contract is concluded that contains matters
constituting unreasonable restraint of trade). In this case, in Article 7-2,
paragraph (1), the term "enterprise" is deemed to be replaced with "trade
association"; and the term "order said enterprise" is deemed to be replaced with
"order the constituent enterprise of said trade association (including the
relevant enterprise if an officer, employee, agent or any other person acting for
the benefit of an enterprise is a constituent enterprise; hereinafter referred to
as a "specified enterprise" in this Article)"; in paragraph (5) of said Article, the
term "enterprise" is deemed to be replaced with "specified enterprise"; in the
main clause of paragraph (6) of said Article, the term "enterprise" is deemed to
be replaced with "specified enterprise"; the term "had discontinued the
relevant violation (limited to when the period of implementation for the
violation is less than two years)" is deemed to be replaced with "had
discontinued the business activities that constituted the relevant violation
(limited to when the period of implementation of the business activities that
constituted the relevant violation is less than two years)"; in paragraph (10) of
said Article, the term "enterprise to pay" is deemed to be replaced with
"specified enterprise to pay," the term "relevant enterprise" is deemed to be
replaced with "relevant specified enterprise"; the term "enterprises who
committed the relevant violation" is deemed to be replaced with "specified
enterprises of the trade association that committed the relevant violation"; and
the term "has not committed" is deemed to be replaced with "has not effected
the business activities that constituted"; in paragraph (11) of said Article, the
term "enterprise" is deemed to be replaced with "specified enterprise"; the term
"paragraphs (5) to (9) inclusive" is deemed to be replaced with "paragraph (5)
or (6)"; the term "enterprises who committed the relevant violation" is deemed
to be replaced with "specified enterprises of the trade association that
committed the relevant violation"; and the term "has not committed" is deemed
to be replaced with "has not effected the business activities that constituted";
in paragraph (12) of said Article, the term "enterprises who committed the
relevant violation" is deemed to be replaced with "specified enterprise of the
22
trade association that committed the relevant violation"; the term "or (5) to (9)
inclusive" is deemed to be replaced with "(5) or (6)"; and the term "has not
committed" is deemed to be replaced with "has not effected the business
activities that constituted"; in paragraph (13) of said Article excluding the
items thereof, the term "the enterprises who have committed a violation as
provided in paragraph (1)" is deemed to be replaced with "specified enterprises
of the trade association that committed an act in violation of the provisions of
item (i) (limited to when an act is committed that falls under unreasonable
restraint of trade) or item (ii) (limited to when an international agreement or
an international contract is entered into containing such matters as fall under
unreasonable restraint of trade) of the following Article," the term "two or more
of the enterprises" is deemed to be replaced with "two or more of the specified
enterprises," the term "fall under item (i) below and either item (ii) or (iii)
below" is deemed to be replaced with "fall under item (i) below," the term "the
number of enterprises who have submitted" is deemed to be replaced with "the
number of specified enterprises who have submitted," and the term "an
enterprise" is deemed to be replaced with "a specified enterprise"; in item (i) of
the same paragraph, the term "two or more enterprises" is deemed to be
replaced with "two or more specified enterprises," and the term "said
enterprise" is deemed to be replaced with "said specified enterprise"; in
paragraphs (15) and (16) of said Article, the term "enterprise" is deemed to be
replaced with "specified enterprise"; in paragraph (17) of said Article, the term
"enterprises who submitted" is deemed to be replaced with "specified
enterprises who submitted," the term "the relevant enterprise (if the enterprise
is" is deemed to be replaced with "the relevant specified enterprise (if the
specified enterprise is," the term "one or more of the relevant enterprises" is
deemed to be replaced with "one or more of the relevant specified enterprises,"
the term "jointly with said enterprise" is deemed to be replaced with "jointly
with said specified enterprise," the term "other enterprises" is deemed to be
replaced with "other specified enterprises," the term "one or more of the
relevant enterprises and other enterprises" is deemed to be replaced with "one
or more of the relevant specified enterprises and other specified enterprises,"
the term "committed by the relevant enterprise" is deemed to be replaced with
"committed by the relevant trade association," the term "if the relevant
enterprise" is deemed to be replaced with "if the relevant specified enterprise,"
the term "an enterprise other than" is deemed to be replaced with "a specified
enterprise other than," the term "commit the violation provided in paragraph
(1)" is deemed to be replaced with "effect the business activities that
constituted the relevant violation," and the term "discontinuing" is deemed to
be replaced with "discontinuing the business activities that constituted"; in
paragraph (18) of said Article, the term "enterprise" is deemed to be replaced
23
with "specified enterprise"; and the term "violation committed" is deemed to be
replaced with "report submitted pursuant to the provisions of item (i) of the
same paragraph"; in paragraph (22) of said Article, the term "paragraph (1) or
(4)" is deemed to be replaced with "paragraph (1)," the term "paragraphs (1),
(4) to (9) inclusive" is deemed to be replaced with "the same paragraph or
paragraphs (5), (6)," and the term "(12), or (19)" is deemed to be replaced with
"or (12)"; in paragraph (23) of said Article, the term "(4) to (9) inclusive" is
deemed to be replaced with "(5), (6)," and the term "(12), or (19)" is deemed to
be replaced with "or (12)"; and in the paragraph (27) of said Article, the term
"the period of implementation (or since the end of the Violation Period, which
is applicable to a violation stipulated in paragraph (4))" is deemed to be
replaced with "the period of implementation."
Chapter III-2 Monopolistic Situations
Article 8-4 (1) Whenever a monopolistic situation exists, the Fair Trade
Commission may order the relevant enterprise, pursuant to the procedures as
provided in Section 2 of Chapter VIII, to transfer a part of its business or to
take any other measures necessary to restore competition with respect to the
relevant goods or services; provided, however, that this does not apply if it is
found that such measures may, in relation to said enterprise, reduce the scale
of business to such an extent that the expenses required for the supply of goods
or services said that the enterprise supplies will rise extremely, undermine its
financial position, or make it difficult to maintain its international
competitiveness, or if alternative measures that are found to be sufficient for
restoring competition with respect to the relevant goods or services can be
taken.
(2) In issuing an order pursuant to the preceding paragraph, the Fair Trade
Commission shall give consideration, based on the matters listed in the
following items, to the smooth operation of business activities by the relevant
enterprise and enterprises affiliated therewith and the stabilization of life of
those employed by said enterprise:
(i) Situations of assets, income and expenditures and other aspects of
accounting
(ii) Situations of officers and employees
24
(iii) Location and other locational conditions of factories, workplaces and offices
(iv) Situations of facilities and equipment for the business
(v) The substance of patent rights, trademark rights, and other intellectual
property rights and other technological features
(vi) Capacity for and situations of production, sales, etc.
(vii) Capacity for and situations of funding and acquisition of raw materials,
etc.
(viii) Situations of supply and distribution of goods or services.
Chapter IV Shareholdings, Interlocking Officers, Mergers, Splits, Share
Transfers and Acceptance of Assignments of Business
Article 9 (1) No company may be established that would cause an excessive
concentration of economic power due to share holding (including equity
interest; the same applies hereinafter) in other companies in Japan.
(2) No company (including a foreign company; the same applies hereinafter) may
become a company that causes an excessive concentration of economic power in
Japan by acquiring or holding shares in other companies in Japan.
(3) The term "excessive concentration of economic power" in the preceding two
paragraphs means that the overall business scale of a company, its subsidiary
companies, and other domestic companies whose business activities it controls
through shareholding, is extremely large across a considerable number of
business fields; that a company, its subsidiary companies, and other domestic
companies it controls have a great amount of power to influence other
enterprises through transactions with their funds; or that a company, its
subsidiary companies, and other domestic companies it controls occupy
influential positions in a considerable number of interrelated fields of business;
and that any of these factors have a large effect on the national economy and
impede fair and free competition from moving forward.
(4) If the sum of the total assets (meaning the amount of total assets calculated
pursuant to the method provided in the Rules of the Fair Trade Commission;
25
hereinafter the same applies in this paragraph) of a company falling under any
of the descriptions listed in the following items and its subsidiary companies
(limited to total assets of companies in Japan), as aggregated pursuant to the
method provided in the Rules of the Fair Trade Commission, exceeds the
amount provided by Cabinet Order, which must be no less than the amount
listed in the relevant item, the company shall submit, pursuant to the
provisions of the Rules of the Fair Trade Commission, a written report on its
and its subsidiary companies' business to the Fair Trade Commission within
three months from the end of each business year; provided, however, that this
does not apply if the company is a subsidiary company of another company.
(i) A company for which the ratio of the total acquisition value (or other value
if it is so listed in the latest balance sheet) of the shares of subsidiary
companies to the total assets of said company exceeds fifty percent (referred
to as "holding company" in the next item): six hundred billion yen
(ii) A company that is engaged in banking, insurance or Type I Financial
Instruments Business (meaning Type I Financial Instruments Business as
provided in Article 28, paragraph (1) of Financial Instruments and Exchange
Act (Act No. 25 of 1948); the same applies in paragraphs (3) and (4) of the
following Article) (excluding holding companies): eight trillion yen
(iii) A company other than those listed in the preceding two items: two trillion
yen
(5) The term "subsidiary companies" as used in the preceding two paragraphs
means other companies in Japan of which the majority of voting rights of all
shareholders is held by another company. In this case, any other company in
Japan of which majority of voting rights of all shareholders is held by a
company and any one or more of its subsidiary companies or by any one or
more subsidiary companies of a company is deemed as a subsidiary company of
said company.
(6) In a case under the preceding paragraph, the voting rights held by a company
or the voting rights held by a company and one or two or more of its subsidiary
companies or by one or two or more of subsidiary companies of a company shall
include the voting rights from shares that cannot be duly asserted against the
issuer pursuant to the provisions of Article 147, paragraph (1) and Article 148,
paragraph (1) of the Act on Book-Entry Transfer of Company Bonds, Shares,
etc.
26
(7) A newly incorporated company that falls under a case provided in paragraph
(4) at incorporation shall, pursuant to the provisions of the Rules of the Fair
Trade Commission, notify the Commission thereof within thirty days from the
date of its incorporation.
Article 10 (1) No company may acquire or hold shares of any other companies if
its acquisition or holding of shares substantially restrains competition in any
particular field of trade, nor may any company use unfair trade practices to
acquire or hold shares in another company.
(2) If a company whose domestic sales (meaning the amount stipulated by the
Rules of the Fair Trade Commission as the total amount of value of goods and
services supplied in Japan in the most recent business year; the same applies
hereinafter) as calculated in conjunction with the domestic sales of companies,
etc. other than said company (meaning companies, partnerships (including
equivalents of partnerships in foreign countries; the same applies hereinafter)
and any other business entities that are similar to these; the same applies
hereinafter in this Article) that belong to the group of combined companies to
which said company belongs (meaning a group consisting of said company, its
subsidiary companies, its parent company which is not a subsidiary company of
another company, and subsidiary companies of said parent company (excluding
said company and subsidiary companies of said company); the same applies
hereinafter) using a method stipulated in the Rules of the Fair Trade
Commission (hereinafter referred to as the "Total Domestic Sales Amount")
exceed the amount provided by Cabinet Order, which must be no less than
twenty billion yen (such a company is referred to as an "acquiring company"
hereinafter in this Article), intends to acquire shares of another company
whose domestic sales as calculated in conjunction with the domestic sales of
subsidiary companies of said other company using a method stipulated in the
Rules of the Fair Trade Commission exceed the amount provided by Cabinet
Order, which must be no less than five billion yen (such a company is referred
to as the "issuing company" hereinafter in this Article) (including when the
acquiring company is a settlor or beneficiary and may exercise voting rights or
give instructions to the trustee regarding the exercise of such voting rights
with regard to the shares held in a money or securities trust, and intends to
have the trustee acquire shares issued by the issuing company), so that the
ratio of the number of voting rights, which combines the number of voting
rights for the shares of the issuing company to be held by the acquiring
company after the acquisition with the number of voting rights for the shares
of the issuing company held by companies, etc. other than the acquiring
27
company that belongs to the group of combined companies to which the
acquiring company belongs (referred to as "companies, etc. other than the
acquiring company" in paragraph (4) below), to the voting rights of all
shareholders of the issuing company exceeds the numerical value provided for
by Cabinet Order (if more than one numerical value is provided for, each of the
numerical values pursuant to the provisions of Cabinet Order), which must be
no less than twenty percent, shall give the Fair Trade Commission advance
notification of the plan for the acquisition, pursuant to the provisions of the
Rules of the Fair Trade Commission; provided, however, that this does not
apply if the advance submission of such a plan is stipulated as being difficult
under the Rules of the Fair Trade Commission.
(3) In a case under the preceding paragraph, the voting rights from shares of the
issuing company to be held by the acquiring company after the acquisition may
not include voting rights from shares held in money or securities trust (limited
to when the settlor or beneficiary may exercise the voting rights or give
instructions to the trustee regarding the exercise of such voting rights), voting
rights from shares to be held by the acquiring company after the acquisition if
the acquiring company is engaged in banking or insurance (excluding
companies engaged in insurance that are provided in the Rules of the Fair
Trade Commission; the same applies in the following paragraph and
paragraphs (1) and (2) of the following Article) and intends to acquire shares of
other companies in Japan (excluding companies engaged in banking or
insurance and other companies provided in the Rules of the Fair Trade
Commission; the same applies in the following paragraph and paragraphs (1)
and (2) of the following Article), and voting rights from shares to be held by the
acquiring company after the acquisition if the acquiring company is engaged in
Type I Financial Instruments Business and intends to acquire the shares in
the course of its business, but do include voting rights from shares held in
money or securities trust that the acquiring company may exercise as the
settlor or beneficiary or that allow the acquiring company to give instructions
regarding their exercise (excluding voting rights provided in the Rules of the
Fair Trade Commission; the same applies in the following paragraph), and
voting rights for the shares that may not be duly asserted against the issuer
pursuant to the provisions of Article 147, paragraph (1) and Article 148,
paragraph (1) of the Act on Book-Entry Transfer of Company Bonds, Shares,
etc.
(4) In a case under paragraph (2), voting rights from shares of the issuing
company to be held by companies, etc. other than the acquiring company may
not include voting rights from shares held in money or securities trust (limited
28
to voting rights that the settlor or beneficiary can exercise or give instructions
to the trustee to exercise), voting rights from the shares of other companies in
Japan held by companies, etc. other than the acquiring company if the
acquiring company is engaged in banking or insurance, and voting rights from
shares held by companies, etc. other than the acquiring company in the course
of its business if the acquiring company is engaged in Type I Financial
Instruments Business, but do include voting rights from shares held in money
or securities trust that the acquiring company may exercise as the settlor or
beneficiary or that allow the acquiring company to give instructions regarding
their exercise, and voting rights from shares that may not be duly asserted
against the issuer pursuant to the provisions of Article 147, paragraph (1) and
Article 148, paragraph (1) of the Act on Book-Entry Transfer of Company
Bonds, Shares, etc.
(5) If a partner in a partnership that is a subsidiary company of a company
(limited to partnerships that were established under a partnership contract as
provided in Article 667, paragraph (1) of the Civil Code (Act No. 89 of 1896), an
Investment LPS as provided in Article 2, paragraph (2) of the Limited
Partnership Act for Investment (Act No. 90 of 1998) (referred to simply as an
"investment limited partnership" in paragraph (1), item (iv) of the following
Article), a Limited Liability Partnership as provided in Article 2 of the Limited
Liability Partnership Act (Act No. 40 of 2005), or an organization similar to
these that was established in accordance with the laws and regulations of a
foreign country (hereinafter referred to as a "specified organization similar to a
partnership" in this paragraph); the same applies hereinafter in this
paragraph) (including a member of a specified organization similar to a
partnership; the same applies hereinafter in this paragraph) intends to acquire
shares of the issuing company as partnership property (including property of a
specified organization similar to a partnership; the same applies hereinafter in
this paragraph) (including if all of the partners in a partnership that is a
subsidiary company of a company may be settlors or beneficiaries and may
exercise voting rights or give instructions to the trustee regarding the exercise
of voting rights with regard to shares held in money or securities trust, and
intend to have the trustee acquire shares issued by the issuing company), it is
deemed that the parent company of the partnership (meaning, if a partnership
has two or more parent companies, the parent company of the partnership that
is a subsidiary company of all the other parent companies; the same applies
hereinafter in this paragraph) intends to acquire all of the shares, and if the
shares of the issuing company belong to the partnership property of a
partnership that is a subsidiary company of a company (including when,
regarding the shares held in money or securities trust that belong to the
29
partnership property of a partnership that is a subsidiary company of a
company, all the partners in the partnership may be trustees or beneficiaries
and may exercise the voting rights or give instructions to the trustee regarding
the exercise of such voting rights), the parent company of said partnership is
deemed to hold all of the shares, for the purpose of the application of the
provisions of paragraph (2).
(6) The term "subsidiary company" as used in paragraph (2) and the preceding
paragraph means a stock company for which the majority of voting rights of all
shareholders are held by a company or any other company, etc. prescribed by
the Rules of the Fair Trade Commission as one whose management is
controlled by such a company.
(7) The term "parent company" as used in paragraphs (2) and (5) means a
company prescribed by the Rules of the Fair Trade Commission as one that
controls the management of a company, etc.
(8) No company that gave notification in accordance with the provisions of
paragraph (2) may acquire the shares under the notification until the
expiration of the thirty-day waiting period from the date of acceptance of the
notification; provided, however, that whenever the Fair Trade Commission
finds it to be necessary, it may shorten said period.
(9) If the Fair Trade Commission intends to order necessary measures regarding
the relevant share acquisition under a notification pursuant to the provisions
of Article 17-2, paragraph (1), it shall notify the acquiring company pursuant
to the provisions of Article 50, paragraph (1) before the expiration of the thirtyday waiting period provided in the main clause of the preceding paragraph, or
of any shortened period pursuant to the proviso thereof (if the Fair Trade
Commission requested the acquiring company to submit necessary reports,
information or materials (hereinafter in this paragraph "Reports, etc.")
pursuant to the provisions of the Rules of the Fair Trade Commission during
the relevant period, the period up to the date on which one hundred-twenty
days from the date of acceptance of the notification stipulated in the preceding
paragraph have passed, or the date on which ninety days from the date of
acceptance of all the Reports, etc. have passed, whichever is later); provided,
however, that this does not apply to cases falling under any of the following
items:
(i) Of matters in the plan regarding the acquisition of shares under the
notification, those which are considered important in light of the provisions
30
of paragraph (1) are not carried out by the deadline stipulated in said plan.
(ii) There has been a false statement with respect to important matters in the
plan regarding the acquisition of shares under the notification.
(10) In cases falling under the provisions of item (i) of the preceding paragraph,
the Fair Trade Commission shall send a notification under the main clause of
the preceding paragraph within one year from the deadline in the same item if
it intends to order necessary measures relating to the acquisition of shares
under the notification pursuant to the provisions of Article 17-2, paragraph (1).
Article 11 (1) No company engaged in banking or insurance businesses may
acquire or hold voting rights in another company in Japan if it results in its
holding more than five percent (ten percent for a company engaged in
insurance business; the same applies in the next paragraph) of voting rights of
all shareholders; provided, however, that this does not apply if the approval of
the Fair Trade Commission is obtained in advance pursuant to the provisions
of the Rules of the Fair Trade Commission, and to cases falling under any of
the following items:
(i) Cases in which voting rights are acquired or held by acquisition or holding
of shares as a result of the exercise of a security interest, or of receipt of
substitute performance
(ii) Cases in which the ratio of the voting rights from shares already held to
voting rights of all shareholders of said company increases, as a result of
acquisition by another company in Japan of its own shares
(iii) Cases in which voting rights are acquired or held by acquisition or holding
of the shares in the form of trust property in a money or securities trust
(iv) Cases in which voting rights are acquired or held by a limited liability
partner in an investment limited partnership (hereinafter referred to as
"limited liability partner" in this item) as a result of acquisition or holding of
shares as partnership property; provided, however, that this does not apply if
the limited liability partner may exercise the voting rights, if the limited
liability partner may give instructions to an unlimited liability partner in
the investment limited partnership regarding the exercise of such voting
rights, or if the voting rights are held in excess of the period provided by
Cabinet Order from the date on which the voting rights were acquired
31
(v) Cases in which voting rights are acquired or held by a partner (excluding a
partner to which management of the business is delegated; hereinafter
referred to as a "non-managing partner" in this item) in a partnership that
was established by a partnership contract provided in Article 667, paragraph
(1) of the Civil Code, whose purpose is operation of business to make
investments into companies (limited to partnerships in which management of
the business is delegated to one or more partners) as a result of acquisition
or holding of shares as partnership property; provided, however, that this
does not apply if the non-managing partner may exercise voting rights, if the
non-managing partner may give instructions to a partner to which the
management of business regarding the exercise of such voting rights is
delegated, or if the voting rights are held in excess of the period provided in
the Cabinet Order referred to in the preceding item from the date on which
said voting rights were acquired
(vi) In addition to the cases under the preceding items, cases provided for in
the Rules of the Fair Trade Commission as cases in which there is no danger
of restriction on the business activities of another company in Japan
(2) Any company, in the cases under items (i) to (iii) inclusive and (vi) of the
preceding paragraph (in the case under item (iii) of the same paragraph,
excluding when the settlor or beneficiary other than those acquired or holding
the relevant voting rights may exercise the voting rights and said settlor or
beneficiary may instruct the trustee on the exercise of such voting rights), that
attempts to hold the relevant voting rights of another company in Japan over a
period of one year from the date of such acquisition resulting in holding in
excess of five percent of total voting rights of all shareholders must obtain
approval to do so in advance from the Commission, pursuant to the provisions
of the Rules of the Fair Trade Commission. Except in a case under item (iii) of
the same paragraph, the approval of the Fair Trade Commission in such cases
must be conditional on prompt disposal of the relevant voting rights by the
company engaged in the banking or insurance business.
(3) If the Fair Trade Commission seeks to grant approval under the provisions of
the preceding two paragraphs, it shall consult with the Prime Minister in
advance of doing so.
(4) The authority of the Prime Minister as set forth in the preceding paragraph is
hereby delegated to the Commissioner of the Financial Services Agency.
32
Article 12 Deleted.
Article 13 (1) An officer or an employee (meaning, in this Article, a person other
than an officer engaged in the business of a company on a regular basis) of a
company may not hold a position as an officer of another company at the same
time, if the person's doing so substantially restrains competition in any
particular field of trade.
(2) A company must not use unfair trade practices to coerce another company
with which it is in competition in Japan to admit its officer to a concurrent
position as an officer or employee of the other company, or to coerce another
company to admit its employee to a concurrent position as an officer.
Article 14 A person that is not a company may not acquire or hold shares in a
company if the person's doing so substantially restrains competition in any
particular field of trade, nor may a person that is not a company use unfair
trade practices to acquire or hold shares in a company.
Article 15 (1) No company may effect a merger if any of the following items
applies:
(i) If the merger substantially restrains competition in a particular field of
trade
(ii) If unfair trade practices are employed in the course of the merger.
(2) Every company that intends to become a party to a merger (hereinafter in
this Article "merging company") shall, pursuant to the provisions of the Rules
of the Fair Trade Commission, notify the Fair Trade Commission in advance of
its merger plan if the total domestic sales amount of any one of the companies
intending to be parties to the merger exceeds the amount provided by Cabinet
Order, which must be no less than twenty billion yen, and the total domestic
sales amount of any one of the other merging companies exceeds the amount
provided by Cabinet Order, which must be no less than five billion yen;
provided, however, that this does not apply if all of the merging companies
belong to the same group of combined companies.
33
(3) The provisions of paragraphs (8) to (10) inclusive of Article 10 apply mutatis
mutandis to the restriction of a merger under a notification pursuant to the
provisions of the preceding paragraph and to the orders made by the Fair
Trade Commission pursuant to the provisions of Article 17-2, paragraph (1). In
this case, in Article 10, paragraph (8), the term "acquire the shares" is deemed
to be replaced with "merge"; in paragraph (9) of the same Article, the terms
"share acquisition" and "acquisition of shares" is deemed to be replaced with
"merger"; the term "notify the acquiring company" is deemed to be replaced
with "notify the merging companies"; and the term "requested the acquiring
company" is deemed to be replaced with "requested at least one of the merging
companies"; and in paragraph (10) of the same Article, the term "acquisition of
shares" is deemed to be replaced with "merger."
Article 15-2 (1) No company may effect a joint incorporation-type company split
(meaning an incorporation-type company split that a company effects jointly
with another company; the same applies hereinafter) or an absorption-type
split if any of the following items applies:
(i) If the joint incorporation-type company split or absorption-type split
substantially restrains competition in a particular field of trade
(ii) If unfair trade practices have been employed in the course of the joint
incorporation-type company split or absorption-type split
(2) Every company that intends to become a party to a joint incorporation-type
company split shall, pursuant to the provisions of the Rules of the Fair Trade
Commission, notify the Fair Trade Commission in advance of its plan with
regard to such a joint incorporation-type company split if any of the following
items applies; provided, however, that this does not apply if all the companies
intending to become parties to the joint incorporation-type company split
belong to the same group of combined companies:
(i) The total domestic sales amount of any one of the companies that intend to
become parties to the joint incorporation-type company split (limited to a
company that intends to have the company incorporated through such a joint
incorporation-type company split acquire all of its business (hereinafter in
this paragraph "total succession company")) exceeds the amount specified by
Cabinet Order, which must be no less than twenty billion yen, and the total
domestic sales amount of any one of the other companies that intend to
become parties to the same company split (limited to a total succession
34
company) exceeds the amount specified by Cabinet Order, which must be no
less than five billion yen.
(ii) The total domestic sales amount of any one of the companies that intend to
become parties to the joint incorporation-type company split (limited to a
total succession company) exceeds the amount specified by Cabinet Order,
which must be no less than twenty billion yen, and the domestic sales of any
one of the other companies that intend to become parties to the same
company split (limited to a company that intends to have the company
incorporated through such a joint incorporation-type company split acquire a
substantial part of its business (hereinafter in this paragraph "substantial
part succession company")), in connection with the part of the business to be
succeeded to, exceed the amount specified by Cabinet Order, which must be
no less than three billion yen.
(iii) The total domestic sales amount of any one of the companies that intend to
become parties to the joint incorporation-type company split (limited to a
total succession company) exceeds the amount specified by Cabinet Order,
which must be no less than five billion yen, and the domestic sales of any one
of the other companies that intend to become parties to the same company
split (limited to a substantial part succession company), in connection with
the part of the business to be succeeded to, exceeds the amount specified by
Cabinet Order, which must be no less than ten billion yen (excluding cases
that fall under the previous item).
(iv) The domestic sales of any one of the companies that intend to become
parties to the joint incorporation-type company split (limited to a substantial
part succession company), in connection with the part of the business to be
succeeded to, exceed the amount specified by Cabinet Order, which must be
no less than ten billion yen, and the domestic sales of any one of the other
companies that intend to become parties to the same company split (limited
to a substantial part succession company), in connection with the part of the
business to be succeeded to, exceed the amount specified by Cabinet Order,
which must be no less than three billion yen.
(3) Every company that intends to become a party to an absorption-type split
shall, pursuant to the provisions of the Rules of the Fair Trade Commission,
notify the Fair Trade Commission in advance of its plan with regard to such an
absorption-type split if any of the following items applies; provided, however,
that this does not apply if all the companies intending to become parties to the
absorption-type split belong to the same group of combined companies:
35
(i) The total domestic sales amount of any one of the companies that intend to
become parties to the absorption-type split (limited to a company that
intends to alienate all of its business through such absorption-type split
(referred to in the following item as "total succession company")) exceeds the
amount specified by Cabinet Order, which must be no less than twenty
billion yen, and the total domestic sales amount of the company that intends
to succeed to the business through such a split exceeds the amount specified
by Cabinet Order, which must be no less than five billion yen.
(ii) The total domestic sales amount of any one of the companies that intend to
become parties to the absorption-type split (limited to a total succession
company) exceeds the amount specified by Cabinet Order, which must be no
less than five billion yen, and the total domestic sales amount of the
company that intends to succeed to the business through such a split exceeds
the amount specified by Cabinet Order, which must be no less than twenty
billion yen (excluding cases that fall under the previous item).
(iii) The domestic sales of any one of the companies that intend to become
parties to the absorption-type split (limited to a company that intends to
alienate a substantial part of its business through such an absorption-type
split (referred to in the following item as "substantial part succession
company")), in connection with the part of the business to be alienated,
exceeds the amount specified by Cabinet Order, which must be no less than
ten billion yen, and the total domestic sales amount of the company that
intends to succeed to the business through such a split exceeds the amount
specified by Cabinet Order, which must be no less than five billion yen.
(iv) The domestic sales of any one of the companies that intend to become
parties to the absorption-type split (limited to a substantial part succession
company), in connection with the part of the business to be alienated,
exceeds the amount specified by Cabinet Order, which must be no less than
three billion yen, and the total domestic sales amount of the company that
intends to succeed to the business through such a split exceeds the amount
specified by Cabinet Order, which must be no less than twenty billion yen
(excluding cases that fall under the previous item).
(4) The provisions of Article 10, paragraphs (8) to (10) inclusive apply mutatis
mutandis to the restriction of joint incorporation-type company splits and
absorption-type splits under a notification pursuant to the provisions of the
two preceding paragraphs and to the orders made by the Fair Trade
36
Commission pursuant to the provisions of Article 17-2, paragraph (1). In this
case, the term "acquire the shares" in Article 10, paragraph (8) is deemed to be
replaced with "become a party to the joint incorporation-type company split or
to the absorption-type split"; in paragraph (9) of the same Article, the terms
"share acquisition" and "acquisition of shares" is deemed to be replaced with
"joint incorporation-type company split or absorption-type split"; the term
"requested the acquiring company" is deemed to be replaced with "requested at
least one of the companies intending to become parties to the joint
incorporation-type company split or to the absorption-type split"; and the term
"notify the acquiring company" is deemed to be replaced with "notify the
company intending to be a party to the joint incorporation-type company split
or to the absorption-type split"; and in paragraph (10) of the same Article, the
term "the acquisition of shares" is deemed to be replaced with "the joint
incorporation-type company split or the absorption-type split."
Article 15-3 (1) No company may engage in a joint share transfer (meaning a
share transfer carried out by a company jointly with another company; the
same applies hereinafter) if it falls under either of the following items:
(i) If the joint share transfer substantially restrains competition in a particular
field of trade
(ii) If unfair trade practices have been employed in the course of the share
transfer
(2) Every company that intends to engage in a joint share transfer shall,
pursuant to the provisions of the Rules of the Fair Trade Commission, notify
the Fair Trade Commission in advance of its plan with regard to the share
transfer, if the total amount of the domestic sales of any one of the companies
intending to be parties to the joint share transfer exceeds the amount provided
by Cabinet Order, which must be no less than twenty billion yen, and the total
amount of the domestic sales of any one of the other companies intending to be
parties to the same joint share transfer exceeds the amount provided by
Cabinet Order, which must be no less than five billion yen; provided, however,
that this does not apply if all the companies intending to be parties to the joint
share transfer belong to the same group of combined companies.
(3) The provisions of the paragraphs (8) to (10) inclusive of Article 10 apply
mutatis mutandis to the restriction of a joint share transfer under a
notification pursuant to the provisions of the preceding paragraph, and to the
37
orders made by the Fair Trade Commission pursuant to the provisions of
Article 17-2, paragraph (1). In this case, the term "acquire the shares"
appearing in Article 10, paragraph (8) is deemed to be replaced with "perform
the joint share transfer"; in paragraph (9) of the same Article, the terms "share
acquisition" and "acquisition of shares" is deemed to be replaced with "joint
share transfer"; the term "notify the acquiring company" is deemed to be
replaced with "notify at least one of the companies intending to be parties to
the joint share transfer"; and the term "requested the acquiring company" is
deemed to be replaced with "requested the company intending to be a party to
the joint share transfer"; and in paragraph (10) of the same Article, the term
"acquisition of shares" is deemed to be replaced with "joint share transfer."
Article 16 (1) No company may engage in any of the following acts if its doing so
substantially restrains competition in any particular field of trade, nor may it
engage in any of the following acts through unfair trade practices:
(i) Accepting assignment of the whole or a substantial part of the business of
another company
(ii) Accepting assignment of the whole or a substantial part of the fixed assets
used for the business of another company
(iii) Taking on a lease of the whole or a substantial part of the business of
another company
(iv) Undertaking the management of the whole or a substantial part of the
business of another company
(v) Entering into a contract which provides for a joint profit and loss account
for business with another company
(2) Any company whose total domestic sales amount exceeds the amount provided
by Cabinet Order, which must be no less than twenty billion yen (referred to in
paragraph (4) as "assignee company") shall, pursuant to the provisions of the
Rules of the Fair Trade Commission, notify the Fair Trade Commission in
advance of its plan with regard to the acceptance of assignment of the business
or the fixed assets used for the business (hereinafter in this Article "business,
etc.") if either of the following items applies; provided, however, that this does
not apply if the company intending to accept assignment of the business, etc.
and the company intending to assign said business, etc. belong to the same
38
group of combined companies.
(i) The company intends to accept assignment of the whole business of another
company whose domestic sales exceeds the amount provided by Cabinet
Order, which must be no less than three billion yen.
(ii) The company intends to accept assignment of a substantial part of the
business or the whole or a substantial part of the fixed assets used for the
business of another company, and the domestic sales in connection with the
subject of such acceptance of assignment exceeds the amount provided by
Cabinet Order, which must be no less than three billion yen.
(3) The provisions of paragraphs (8) to (10) inclusive of Article 10 apply mutatis
mutandis to the restriction of acceptance of assignment of business, etc. under
a notification pursuant to the provisions of the preceding paragraph and the
orders made by the Fair Trade Commission pursuant to the provisions of
Article 17-2, paragraph (1). In this case, the term "acquire the shares"
appearing in Article 10, paragraph (8) is deemed to be replaced with "accept
assignment of the business or the fixed assets used for the business"; in
paragraph (9) of the same Article, the terms "share acquisition" and
"acquisition of shares" is deemed to be replaced with "acceptance of assignment
of the business or the fixed assets used for the business"; and the term
"acquiring company" is deemed to be replaced with "company intending to
accept assignment of the business or the fixed assets used for the business";
and in paragraph (10) of the same Article, the term "the acquisition of shares"
is deemed to be replaced with "the acceptance of assignment of the business or
the fixed assets used for the business."
Article 17 No person may engage in any act, irrespective of the name given to
that act, that evades the prohibitions and restrictions provided for in the
provisions of Articles 9 to 16 inclusive.
Article 17-2 (1) If an act in violation of the provisions of Article 10, paragraph
(1); Article 11, paragraph (1); Article 15, paragraph (1); Article 15-2, paragraph
(1); Article 15-3, paragraph (1); Article 16, paragraph (1); or the preceding
Article has occurred, the Fair Trade Commission may, pursuant to the
procedures provided in Section 2 of Chapter VIII, order the enterprise
concerned to dispose of all or some of its shares, transfer a part of its business
or take any other measures necessary to eliminate the act in violation of said
39
provisions.
(2) If an act in violation of the provisions of Article 9, paragraph (1) or (2), Article
13, Article 14, or the preceding Article has occurred, the Fair Trade
Commission may, pursuant to the procedures provided for in Section 2 of
Chapter VIII, order the person violating the provisions to dispose of all or some
of the person's shares, resign from the person's position as an officer of the
company or take any other measures necessary to eliminate the act in violation
of said provisions.
Article 18 (1) If companies have merged in violation of the provisions of Article
15, paragraph (2) and Article 10, paragraph (8) as applied mutatis mutandis by
replacing certain terms pursuant to Article 15, paragraph (3), the Fair Trade
Commission may bring an action to have the merger declared invalid.
(2) The provisions of the preceding paragraph apply mutatis mutandis to when
companies have effected a joint incorporation-type company split or an
absorption-type split in violation of the provisions of Article 15-2, paragraph
(2) and (3) and Article 10, paragraph (8) as applied mutatis mutandis by
replacing certain terms pursuant to Article 15-2, paragraph (4). In this case,
the term "action seeking invalidation of a said merger" in the preceding
paragraph is deemed to be replaced with "action seeking invalidation of a said
joint incorporation-type company split or said absorption-type split."
(3) The provisions of paragraph (1) are applied mutatis mutandis to when
companies have affected a joint share transfer in violation of provisions of
Article 15-3, paragraph (2) and Article 10, paragraph (8) as applied mutatis
mutandis by replacing certain terms pursuant to Article 15-3, paragraph (3). In
this case, the term "action seeking invalidation of said merger" in paragraph
(1) is deemed to be replaced with "action seeking invalidation of said joint
share transfer."
Chapter V Unfair Trade Practices
Article 19 No enterprise shall employ unfair trade practices.
Article 20 (1) If an act in violation of the provisions of the preceding Article has
40
occurred, the Fair Trade Commission may, pursuant to the procedures
provided in Section 2 of Chapter VIII, order the enterprise to cease and desist
from engaging in said act, delete the relevant clauses from the contract, or take
any other measure necessary to eliminate said act.
(2) The provisions of Article 7, paragraph (2) apply mutatis mutandis to an act in
violation of the provisions of the preceding Article.
Article 20-2 If an enterprise under either of the following items has committed
an act in violation of the provisions of Article 19 (limited to acts that fall under
Article 2, paragraph (9), item (i)), the Fair Trade Commission shall order the
enterprise, pursuant to the procedures provided in Chapter VIII, Section 2, to
pay to the national treasury a surcharge in an amount equivalent to three
percent (two percent if the enterprise engages in retail business, or one percent
if the enterprise engages in wholesale business) of the amount of sales for
goods or services identical to those set forth in (a) of said item that the
relevant enterprise supplied, through the act in violation, to the competitor of
an enterprise to which it refused to supply the goods or services or to which it
supplied the goods or services in limited quantities or with a limited content
(for an act in violation under the provisions of (b) of the same item, the amount
of sales for goods or services identical to those set forth in (b) of the same item
that the relevant enterprise supplied to the other enterprise prescribed in (b) of
the same item (hereinafter referred to as the "refusing enterprise" in this
Article) (including goods or services that were necessary in order for the
refusing enterprise to supply the relevant type of goods or services), for goods
or services identical to those that the enterprise supplied to the competitor of
an enterprise to which the refusing enterprise refused to supply the goods or
services or to which it supplied the goods or services in limited quantities or
with a limited content, and for goods or services identical to those that the
refusing company supplied to the relevant enterprise), which is calculated
using the method prescribed by Cabinet Order, during the period from the date
on which the enterprise began to engage in the act to the date on which it
stopped engaging in the act (if this period exceeds three years, it is deemed to
be the three years preceding the date on which the enterprise stopped engaging
in the act); provided, however, that the Commission may not order the payment
of such a surcharge if, with regard to the act in violation, the enterprise has
received an order pursuant to the provisions of Article 7-2, paragraph (1)
(including when these are applied mutatis mutandis by replacing certain terms
pursuant to paragraph (2) of the same Article and to Article 8-3; the same
applies in the following Article to Article 20-5 inclusive) or an order pursuant
41
to the provisions of Article 7-2, paragraph (4) (limited to when said order is
final and binding; the same applies in Article 20-4 and Article 20-5), a
notification pursuant to the provisions of Article 7-2, paragraph (18) or (21), or
a decision pursuant to the provisions of Article 63, paragraph (2), or if the
amount of surcharge pursuant to this Article is less than one million yen:
(i) A person who received an order pursuant to the provisions of the preceding
Article (limited to an order related to Article 2, paragraph (9), item (i); the
same applies in the following item) or an order pursuant to the provisions of
this Article (limited to when said order is final and binding; the same applies
in the following item), within ten years before the date on which the measure
listed in Article 47, paragraph (1), item (iv) was first made in relation to the
case connected with said violation (hereinafter referred to as "investigation
start date" in the following Article to Article 20-5 inclusive).
(ii) If the measures listed in Article 47, paragraph (1), item (iv) were not taken,
the person that was subject to an order pursuant to the provisions of the
preceding Article or of this Article within the ten years prior to the date on
which the relevant enterprise received advance notification in connection
with said violation.
Article 20-3 If an enterprise under either of the following items has committed
an act in violation of the provisions of Article 19 (limited to an act that falls
under Article 2, paragraph (9), item (ii), paragraph (9), item (ii)), the Fair
Trade Commission shall order the enterprise, pursuant to the procedures
provided in Chapter VIII, Section 2, to pay to the national treasury a surcharge
in an amount equivalent to three percent (two percent if the enterprise engages
in retail business, or one percent if the enterprise engages in wholesale
business) of the amount of sales for the goods or services under the same item
that the enterprise supplied through the act in violation, which is calculated
using the method provided by Cabinet Order, during the period from the date
on which the enterprise began to engage in the act until the date on which it
stopped engaging in the act (if this period exceeds three years, it is deemed to
be the three years preceding the date on which the enterprise stopped engaging
in the act); provided, however, that the Commission may not order the payment
of such a surcharge if, with regard to the act in violation, the enterprise has
received an order pursuant to the provisions of Article 7-2, paragraph (1) or (4)
or provisions of the following Article (limited to when said order is final and
binding), a notification pursuant to the provisions of Article 7-2, paragraph
(18) or (21), or a decision pursuant to the provisions of Article 63, paragraph
42
(2), or if the amount of surcharge pursuant to this Article is less than one
million yen:
(i) A person who has received an order pursuant to the provisions of Article 20
(limited to an order related to Article 2, paragraph (9), item (ii); the same
applies in the following item) or an order pursuant to the provisions of this
Article (limited to when said order is final and binding; the same applies in
the following item), within ten years before the investigation start date.
(ii) If the measures listed in Article 47, paragraph (1), item (iv) were not taken,
a person that was subject to an order pursuant to the provisions of the
Article 20 or of this Article within the ten years prior to the date on which
the relevant enterprise received advance notification in connection with the
relevant violation.
Article 20-4 If an enterprise under either of the following items has committed
an act in violation of the provisions of Article 19 (limited to an act that falls
under Article 2, paragraph (9), item (iii)), the Fair Trade Commission shall
order the enterprise, pursuant to the procedures provided in Chapter VIII,
Section 2, to pay to the national treasury a surcharge in an amount equivalent
to three percent (two percent if the enterprise engages in retail business, or
one percent if the enterprise engages in wholesale business) of the amount of
sales for the goods or services provided in the same item that the enterprise
supplied through the act in violation, which is calculated using the method
provided by Cabinet Order, during the period from the date on which the
enterprise first engaged in the act to the date on which it stopped engaging in
the act (if this period exceeds three years, it is deemed to be the three years
preceding the date on which the enterprise stopped engaging in the act);
provided, however, that the Commission may not order the payment of such a
surcharge if, with regard to the act in violation, the enterprise has received an
order pursuant to the provisions of Article 7-2, paragraph (1) or (4), a
notification pursuant to the provisions of paragraph (18) or (21) of the same
Article, or a decision pursuant to the provisions of Article 63, paragraph (2), or
if the amount of surcharge pursuant to this Article is less than one million yen:
(i) An enterprise that was subject to an order pursuant to the provisions of
Article 20 (limited to an order related to Article 2, paragraph (9), item (iii);
the same applies in the following item) or an order pursuant to the
provisions of this Article (limited to when said order has become final and
binding; the same applies in the following item), within ten years before the
43
investigation start date.
(ii) If the measure listed in Article 47, paragraph (1), item (iv) was not taken,
an enterprise that was subject to an order pursuant to the provisions of
Article 20 or of this Article within the ten years prior to the date on which
the relevant enterprise received advance notification in connection with the
violation.
Article 20-5 If an enterprise under either of the following items engages in an
act in violation of the provisions of Article 19 (limited to an act that falls under
Article 2, paragraph (9), item (iv)), the Fair Trade Commission shall order the
enterprise, pursuant to the procedures provided in Chapter VIII, Section 2, to
pay to the national treasury a surcharge in an amount equivalent to three
percent (two percent if the enterprise engages in retail business, or one percent
if the enterprise engages in wholesale business) of the amount of sales for the
goods or services under the same item that the enterprise supplied through the
act in violation, which is calculated using the method provided by Cabinet
Order, during the period from the date on which the enterprise began to
engage in the act to the date on which it stopped engaging in the act (if this
period exceeds three years, it is deemed to be the three years preceding the
date on which the enterprise stopped engaging in the act); provided, however,
that the Commission may not order the payment of such a surcharge if, with
regard to the act in violation, the enterprise has received an order pursuant to
the provisions of Article 7-2, paragraph (1) or (4), a notification pursuant to the
provisions of paragraph (18) or (21) of the same Article, or a decision pursuant
to the provisions of Article 63, paragraph (2), or if the amount of surcharge
pursuant to this Article is less than one million yen:
(i) An enterprise that was subject to an order pursuant to the provisions of
Article 20 (limited to an order related to Article 2, paragraph (9), item (iv);
the same applies in the following item) or an order pursuant to the
provisions of this Article (limited to when the order has become final and
binding; the same applies in the following item), within ten years before the
investigation start date.
(ii) If the measures listed in Article 47, paragraph (1), item (iv) are not taken,
an enterprise that was subject to an order pursuant to the provisions of
Article 20 or of this Article within the ten years prior to the date on which
the relevant enterprise received advance notification in connection with said
violation.
44
Article 20-6 If an enterprise has committed an act in violation of the provisions
of Article 19 (limited to an act under Article 2, paragraph (9), item (v) that the
enterprise engaged in on a continuous basis), the Fair Trade Commission shall
order the enterprise, pursuant to the procedures provided in Chapter VIII,
Section 2, to pay to the national treasury a surcharge in an amount equivalent
to one percent of the enterprise's sales to the counterparty to the act in
violation, which is calculated using the method provided by Cabinet Order, for
the period from the date on which the enterprise began implementing in the
act to the date on which said it discontinued implementing in the act (if this
period exceeds three years, it is deemed to be the three years preceding the
date on which the enterprise stopped engaging in the act) (if the enterprise
engaged in the act in violation against a counterparty to which it supplied
goods or services, a surcharge in an amount equivalent to one percent of the
amount of purchases by the counterparty, which is calculated using the method
provided by Cabinet Order, and if there were multiple counterparties to the act
in violation, the surcharge in an amount equivalent to one percent of the total
amount of sales to the counterparties or one percent of the total amount of
purchases by the counterparties, which is calculated using the method
provided by Cabinet Order); provided, however, that the Commission may not
order the payment of such a surcharge if the amount of said surcharge is less
than one million yen.
Article 20-7 The provisions of paragraph (22) to (25) inclusive and Article 7-2,
paragraph (27) are applied mutatis mutandis to when violations as provided in
Article 20-2 to the preceding Article inclusive have been committed. In this
case, in Article 7-2, paragraph (22), the term "paragraph (1) or (4)" is deemed
to be replaced with "Article 20-2 to Article 20-6 inclusive"; and the term
"paragraphs (1), (4) to (9) inclusive, (11), (12) or (19)" is deemed to be replaced
with "these paragraphs"; in paragraph (23) of the same Article, the term "(1),
(4) to (9) inclusive, (11), (12) or (19)" is deemed to be replaced with "Article 202 to Article 20-6 inclusive"; in paragraph (24) of the same Article, the term
"paragraph (1), (2) or (4)" is deemed to be replaced with "Article 20-2 to Article
20-6 inclusive"; the term "and an order pursuant to the provisions of paragraph
(1) (including when these are applied mutatis mutandis by replacing certain
terms pursuant to paragraph (2)) and paragraph (4), a notice pursuant to the
provisions of paragraph (18) and paragraph (21), and a decision pursuant to
the provisions of Article 63, paragraph (2) , received by said juridical person
(hereinafter referred to as 'order, etc.' in this paragraph) is deemed as a
45
violation committed by the juridical person surviving, or established as a result
of the merger, or an order, etc. received by the juridical person surviving, or
established as a result of the merger" is deemed to be replaced with "is deemed
as a violation committed by the juridical person surviving, or established as a
result of the merger"; and the term "the preceding paragraphs and the
following paragraph" is deemed to be replaced with "the preceding two
paragraphs and the following paragraph as applied mutatis mutandis by
replacing certain terms pursuant to Article 20-7, and of Article 20-2 to Article
20-6 inclusive"; in paragraph (25) of the same Article, the term "paragraph (1),
(2) or (4)" is deemed to be replaced with "Article 20-2 to Article 20-6 inclusive";
the term "the violation committed by said juridical person and the order, etc.
received by said juridical person" is deemed to be replaced with "the violation";
the term "or to be an order, etc. received by the subsidiary company, etc. that
has succeeded to specified business, respectively" is deemed to be deleted; the
term "the preceding paragraphs" is deemed to be replaced with "the preceding
three paragraphs as applied mutatis mutandis by replacing certain terms
pursuant to Article 20-7 and Article 20-2 to Article 20-6 inclusive"; the term
"the term 'order said enterprise' appearing in paragraph (1) (including when
these are applied mutatis mutandis by replacing certain terms pursuant to
paragraph (2))" is deemed to be replaced with "the term 'order said enterprise'
appearing in Article 20-2 to Article 20-6 inclusive"; the term "'order subsidiary
company, etc. that has succeeded to specified business (meaning the subsidiary
company, etc. that has succeeded to specified business as provided in
paragraph (25); the same applies hereinafter), jointly and severally with
another subsidiary company, etc. that has succeeded to specified business and
that has received an order pursuant to the provisions of this paragraph
(including when these are applied mutatis mutandis by replacing certain terms
pursuant to the following paragraph),' the term 'order said enterprise'
appearing in paragraph (4) is deemed to be replaced with 'order subsidiary
company, etc. that has succeeded to specified business, jointly and severally
with another subsidiary company, etc. that has succeeded to specified business
and that has received an order pursuant to the provisions of this paragraph'" is
deemed to be replaced with "order subsidiary company, etc. that has succeeded
to specified business, jointly and severally with another subsidiary company,
etc. that has succeeded to specified business and that has received an order
pursuant to the provisions of this Article"; the term "paragraph (22)" is deemed
to be replaced with "paragraph (22) as applied mutatis mutandis by replacing
certain terms pursuant to Article 20-7"; and the term "Any subsidiary company,
etc. that has succeeded to specified business and that has received" is deemed
to be replaced with "Any subsidiary company, etc. that has succeeded to
specified business (meaning subsidiary company, etc. that has succeeded to
46
specified business as provided in paragraph (25) as applied mutatis mutandis
by replacing certain terms pursuant to Article 20-7; the same applies
hereinafter in this paragraph)"; and in paragraph (27) of the same Article, the
term "the end of the period of implementation (or since the end of the Violation
Period, for a violation stipulated in paragraph (4))" is deemed to be replaced
with "the date on which the enterprise stopped engaging in the violation."
Chapter VI Exemptions
Article 21 The provisions of this Act do not apply to acts found to constitute an
exercise of rights under the Copyright Act, Patent Act, Utility Model Act,
Design Act or Trademark Act.
Article 22 The provisions of this Act do not apply to acts by a partnership
(including a federation of partnerships) which conforms to the requirements
listed in each of the following items and which has been formed pursuant to the
provisions of the Act; provided, however, that this does not apply if unfair
trade practices are employed, or if competition in any particular field of trade
is substantially restrained, resulting in unjust price increases:
(i) The purpose of the partnership is to provide mutual support to small-scale
enterprises or consumers
(ii) The partnership is voluntarily formed, and the partners may voluntarily
participate in and withdraw from it
(iii) Each partner possesses equal voting rights
(iv) If a distribution of profits among partners is contemplated, the limits of
the distributions are prescribed by laws and regulations or in the articles of
partnership
Article 23 (1) The provisions of this Act do not apply to legitimate acts engaged
in by an enterprise that produces or sells a commodity designated by the Fair
Trade Commission of easily recognizable uniform quality, in order to fix and
maintain the resale price thereof with another enterprise that purchases such
commodity (this term "resale price" means the price at which the latter
47
enterprise or an enterprise that purchases such a commodity from the latter
enterprise for sale sells it; the same applies hereinafter); provided, however,
that this does not apply if the act tends to unreasonably harm the interests of
general consumers, or if it is engaged in by an enterprise that sells the
commodity against the will of the enterprise that produces the commodity.
(2) The Fair Trade Commission may not designate a commodity under the
provisions of the preceding paragraph unless each of the following items
applies:
(i) The commodity is for daily use by general consumers
(ii) Free competition exists with respect to the commodity
(3) The designation of a commodity under the provisions of paragraph (1) is made
via a public notice.
(4) Paragraph (1) also applies to legitimate acts engaged in by an enterprise that
publishes works or an enterprise that sells such published works in order to fix
and maintain the resale price thereof with another enterprise that purchases
such works.
(5) Organizations formed pursuant to the provisions of any of the following Acts
may not be included in another enterprise who purchases commodities or
works provided in paragraph (1) or the preceding paragraph; provided, however,
that for organizations formed pursuant to the provisions of any of the Acts
listed in items (vii) and (x), this only applies if a business cooperative, a minor
business cooperative, a federation of cooperatives, a commercial and industrial
partnership, or a federation of commercial and industrial partnerships
purchases such commodities as provided in paragraph (2) or such works as
provided in the preceding paragraph, for the consumption of persons directly or
indirectly constituting said business cooperative, federation of cooperatives,
commercial and industrial partnerships, or a federation of commercial and
industrial partnerships:
()
(i) National Public Service Act (Act No. 120 of 1947)
()
(ii) Agricultural Cooperatives Act (Act No. 132 of 1947)
()
(iii) Consumer Cooperatives Act (Act No. 200 of 1948)
()
48
(iv) Fishery Cooperatives Act (Act No. 242 of 1948)
()
(v) Act on Labor Relationship of Specified Independent Administrative Agency,
etc. (Act No. 257 of 1948)
()
(vi) Labor Union Act (Act No. 174 of 1949)
()
(vii) Small and Medium-Sized Enterprise Cooperatives Act (Act No. 181 of
1949)
()
(viii) Local Public Service Act (Act No. 261 of 1950)
()
(ix) Local Public Enterprise Labor Relationships Act (Act No. 289 of 1952)
()
(x) Act on the Organization of Small and Medium-Sized Enterprise Association
(Act No. 185 of 1957)
()
(xi) National Public Officers Mutual Aid Association Act (Act No. 128of 1958)
()
(xii) Local Public Officers, etc. Mutual Aid Association Act (Act No. 152 of
1962)
()
(xiii) Forestry Cooperatives Act (Act No. 36 of 1978)
(6) If an enterprise as provided in paragraph (1) has entered into a contract that
fixes and maintains the resale price as provided in the Rules of the Fair Trade
Commission, notify the Fair Trade Commission thereof within thirty days from
the date of the contract; provided, however, that this does not apply if
otherwise prescribed by the Rules of the Fair Trade Commission.
Chapter VII Injunctions and Damages
Article 24 A person whose interests are infringed upon or likely to be infringed
upon by an act in violation of the provisions of Article 8, item (v) or Article 19
and who is thereby suffering or likely to suffer extreme damage is entitled to
seek the suspension or prevention of such infringements from an enterprise or
a trade association that infringes upon or is likely to infringe upon such
interests.
49
Article 25 (1) An enterprise that has committed an act in violation of the
provisions of Articles 3, 6 or 19 (for enterprises that have committed acts in
violation of the provisions of Article 6, limited to enterprises that have effected
unreasonable restraint of trade or employed unfair trade practices in the
international agreement or contract concerned) and any trade association that
has committed an act in violation of the provisions of Article 8 is liable for
damages suffered by another party.
(2) No enterprise or trade association may be exempted from the liability
provided in the preceding paragraph by proving the non-existence of intention
or negligence on its part.
Article 26 (1) The right to claim damages under to the provisions of the
preceding Article may not be asserted in court until the cease and desist order
provided for in the provisions of Article 49 (if no such order has been issued,
the payment order provided in Article 62, paragraph (1) (excluding those
issued against an enterprise that constitutes a trade association that has
committed an act in violation of the provisions of Article 8, item (i) or (ii))) has
become final and binding.
(2) The right set forth in the preceding paragraph shall expire by prescription
after a lapse of three years from the date on which the cease and desist order
or the payment order set forth in said paragraph became final and binding.
Chapter VIII Fair Trade Commission
Section 1 Establishment, Duty, Affairs under the Jurisdiction and
Organization, Etc.
Article 27 (1) The Fair Trade Commission, which has the duty to achieve the
purpose set forth in Article 1, is hereby established pursuant to the provisions
of Article 49, paragraph (3) of the Act for Establishment of the Cabinet Office
(Act No. 89 of 1999).
(2) The Fair Trade Commission is administratively attached to the office of the
Prime Minister.
50
Article 27-2 In order to perform the duty set forth in paragraph (1) of the
preceding Article, the Fair Trade Commission takes charge of the following
administrative affairs:
(i) Those concerning regulations on private monopolization
(ii) Those concerning regulations on unreasonable restraint of trade
(iii) Those concerning regulations on unfair trade practices
(iv) Those concerning regulations on monopolistic situations
(v) Those concerning international company in administrative affairs under the
jurisdiction of the Fair Trade Commission
(vi) Administrative affairs that are assigned to the Fair Trade Commission
pursuant to an Act (including an order pursuant to an Act), in addition to
what is listed in any of the preceding items
Article 28 The chairman and commissioners of the Fair Trade Commission
exercise their authority independently.
Article 29 (1) The Fair Trade Commission consists of a chairman and four
commissioners.
(2) The chairman and commissioners are appointed by the Prime Minister with
the consent of both Houses of the Diet from among persons aged thirty-five or
above who have knowledge and experience in law or economics.
(3) The appointment and dismissal of the chairman is certified by the Emperor.
(4) The chairman and commissioners are public officials.
Article 30 (1) The term of office of the chairman and commissioners is five years.
However, the term of office of a chairman or commissioner appointed to fill a
vacancy is the remaining term of office of the chairman or commissioner's
predecessor.
51
(2) The chairman and commissioners may be reappointed.
(3) The chairman and commissioners retire from office upon reaching the age of
seventy.
(4) If the term of office of the chairman or a commissioner expires, or a vacancy
occurs at a time when the consent of both Houses of the Diet cannot be
obtained because the Diet is not in session or the House of Representatives has
been dissolved, the Prime Minister may appoint a chairman or commissioner
from among persons who have the qualifications provided in paragraph (2) of
the preceding Article. In this case, the subsequent approval of both Houses of
the Diet must be obtained in the first session of the Diet after the appointment.
Article 31 A chairman or a commissioner may not be dismissed from office
against the chairman's will, except in cases falling under any of the following
items:
(i) A decision of the commencement of bankruptcy proceedings has been made
against the chairman
(ii) The chairman has been dismissed by disciplinary action
(iii) The chairman has been punished for violation of the provisions of this Act
(iv) The chairman has been punished by imprisonment without work or severer
punishment
(v) The Fair Trade Commission has decided that the chairman is incapable of
executing the chairman's duties due to mental or physical disorder
(vi) The subsequent approval of both Houses of the Diet could not be obtained
in a case under paragraph (4) of the preceding Article
Article 32 In a case under items (i) or (iii) to (vi) inclusive of the preceding
Article, the Prime Minister shall dismiss the chairman or the commissioner
concerned from office.
52
Article 33 (1) The chairman presides over the Fair Trade Commission and
represents it.
(2) The Fair Trade Commission shall designate in advance an acting chairman
from among the commissioners in case where the chairman cannot execute the
chairman's duties.
Article 34 (1) No meeting of the Fair Trade Commission may be held, nor may a
resolution be effected without the attendance of the chairman and two or more
commissioners.
(2) A Fair Trade Commission's decision is effected by a majority of the attendees.
In the event of a tie vote, the chairman shall decide.
(3) Notwithstanding the provisions of the preceding paragraph, a Fair Trade
Commission decision under the provisions of Article 31, item (v) must have
unanimous concurrence by all commissioners and the chairman except for the
commissioner or chairman concerned.
(4) For the purpose of applying the provisions of paragraph (1) in the case where
the chairman cannot execute the chairman's duties, the commissioner chosen
to act on behalf of the chairman pursuant to the provisions of paragraph (2) of
the preceding Article is deemed to be the chairman.
Article 35 (1) A general secretariat is hereby established for the Fair Trade
Commission for the purpose of the administration of its affairs.
(2) The general secretariat is headed by a secretary general.
(3) The secretary general presides over the administrative affairs of the general
secretariat.
(4) The secretariat and bureaus are hereby established in the general secretariat.
(5) The provisions of paragraphs (2) to (8) inclusive of Article 17 of the Act for
Establishment of the Cabinet Office apply mutatis mutandis to the
establishment, the scope of the affairs under the jurisdiction, and the internal
organization of the secretariat and bureaus referred to in the preceding
paragraph.
53
(6) The secretariat and bureaus established pursuant to the provisions of
paragraph (4) do not exceed three in number.
(7) A public prosecutor, an attorney practicing at the time of the appointment or
a person qualified to be an attorney must be among the staff members of the
general secretariat.
(8) The duties of the staff member who is the public prosecutor referred to in the
preceding paragraph are limited to duties related to cases of violation of the
provisions of this Act.
Article 35-2 (1) Local offices are established at necessary locations as local
organizations of the general secretariat of the Fair Trade Commission.
(2) The names, locations and jurisdictional districts of the local offices referred to
in the preceding paragraph are provided by Cabinet Order.
(3) Branches may be established at necessary locations under the local offices
referred to in paragraph (1) to conduct some of the affairs of the local offices.
(4) The names, locations and jurisdictional districts of the branches referred to in
the preceding paragraph are provided by Cabinet Office Ordinance.
Article 36 (1) The remuneration of the chairman and commissioners is provided
for separately.
(2) The remuneration of the chairman and commissioners may not, against their
will, be reduced in amount while they are in office.
Article 37 The chairman, the commissioners and the staff members of the Fair
Trade Commission prescribed by Cabinet Order may not engage in any of the
following acts while they are in office:
(i) Becoming a member of the Diet or of the council of a local public entity, or
actively engaging in political activities
(ii) Engaging in any other remunerative duties except as permitted by the
54
Prime Minister
(iii) Engaging in commerce or any other business for monetary profit
Article 38 The chairman, commissioners and staff members of the Fair Trade
Commission must not express their opinions outside the Fair Trade
Commission on the existence or non-existence of facts or the application of laws
and regulations with regard to a case; provided, however, this shall not apply
to a case provided for in this Act or to a case in which the results of their
research on this Act are published.
Article 39 The chairman, commissioners and staff members of the Fair Trade
Commission and any person who once held such a position must not divulge to
others or make surreptitious use of the secrets of enterprises that came to their
knowledge in the course of their duties.
Article 40 The Fair Trade Commission may, if necessary for the performance of
its duties, order public offices, juridical persons formed by special laws and
regulations, enterprises or organizations of enterprises, or their personnel to
appear before the Fair Trade Commission, or require them to submit necessary
reports, information or materials.
Article 41 The Fair Trade Commission may, if necessary for the performance of
its duties, commission public offices, juridical persons formed by special laws
and regulations, schools, enterprises, organizations of enterprises, persons
with the relevant knowledge and experience, or others to carry out necessary
investigations.
Article 42 The Fair Trade Commission may, if necessary for the performance of
its duties, hold public hearings to obtain the opinions of the public.
Article 43 The Fair Trade Commission may, in order to ensure the proper
operation of this Act, make any necessary matters public except for the secrets
of enterprises.
55
Article 43-2 (1) The Fair Trade Commission may provide any foreign authority
responsible for enforcement of any foreign laws and regulations equivalent to
those of this Act (hereinafter referred to in this Article as a "foreign
competition authority") with information that is deemed helpful and necessary
for the execution performance of the foreign competition authority's duties
(limited to duties equivalent to those of the Fair Trade Commission as provided
in this Act; the same applies in the following paragraph); provided, however,
that this does not apply if the provision of said information is found likely to
interfere with the proper execution of this Act or to infringe on the interests of
Japan in any other way.
(2) Whenever the Fair Trade Commission provides information to a foreign
competition authority pursuant to the provisions of the preceding paragraph,
the Fair Trade Commission shall confirm the matters listed in the following
items:
(i) That the relevant foreign competition authority is capable of providing
information equivalent to the information provided pursuant to the
provisions of the preceding paragraph
(ii) That the secrecy of information provided as secret pursuant to the
provisions of the preceding paragraph will be protected under the laws and
regulations of the relevant foreign country to a degree that is equivalent to
the degree to which the secrecy of such information is protected in Japan
(iii) That the information provided pursuant to the provisions of the preceding
paragraph will not be used by the relevant foreign competition authority for
purposes other than that those contributing to performance of its duties
(3) Appropriate measures must be taken so that the information provided
pursuant to the provisions of paragraph (1) is not used for criminal proceedings
undertaken by a court or a judge in a foreign country.
Article 44 (1) The Fair Trade Commission shall report annually to the Diet,
through the Prime Minister, on the enforcement of this Act.
(2) The Fair Trade Commission may submit to the Diet, through the Prime
Minister, its opinions on matters necessary to attain the purpose of this Act.
56
Section 2 Proceedings
Article 45 (1) Whenever any person believes there to be a fact in violation of the
provisions of this Act, the person may report the fact to the Fair Trade
Commission and ask for appropriate measures to be taken.
(2) When the Fair Trade Commission receives a report as provided in the
preceding paragraph, it shall make the necessary investigations into the case.
(3) If a report made pursuant to the provisions of paragraph (1) includes a
written allegation with regard to a specific fact pursuant to the provisions of
the Rules of the Fair Trade Commission, when the Fair Trade Commission
decides to take appropriate measures or to take no measures with respect to
the case connected with the report, the Fair Trade Commission shall promptly
notify the person who made the report to that effect.
(4) Whenever the Fair Trade Commission believes there to be a fact in violation
of the provisions of this Act or a fact falling under the purview of a
monopolistic situation, the Fair Trade Commission may take appropriate
measures on its own authority.
Article 46 (1) If the Fair Trade Commission believes there to be a fact that falls
under the purview of a monopolistic situation and decides to take the measures
set forth in paragraph (4) of the preceding Article, the Fair Trade Commission
shall notify the competent minister for the business that the enterprise
concerned operates to that effect.
(2) When a notice set forth in the preceding paragraph has been given, the
competent minister may express the competent minister's opinion to the Fair
Trade Commission regarding the existence or non-existence of a monopolistic
situation and other measures that the competent minister considers sufficient
to restore competition as provided in the proviso to Article 8-4, paragraph (1).
Article 47 (1) In order to conduct the necessary investigation with regard to a
case, the Fair Trade Commission may take the following measures:
(i) Order persons concerned with a case or witness to appear to be interrogated,
57
or collect their opinions or reports
(ii) Order expert witnesses to appear to give expert opinions
(iii) Order persons holding books and documents and other object to submit
such objects, or keep such submitted objects at the Fair Trade Commission
(iv) Enter any business office of the persons concerned with a case or other
necessary sites, and inspect conditions of business operation and property,
books and documents, and other materials
(2) If the Fair Trade Commission finds it to be appropriate, it may designate a
staff member of the Fair Trade Commission as an investigator pursuant to
Cabinet Order, and cause the staff member to take the measures set forth in
the preceding paragraph.
(3) If the Fair Trade Commission causes a staff member to conduct an on-site
inspection pursuant to the provisions of the preceding paragraph, the Fair
Trade Commission shall instruct the staff member to carry an identification
card and to present it to the persons concerned.
(4) The authority to take measures pursuant to the provisions of paragraph (1)
must not be construed as being granted for criminal investigation.
Article 48 Whenever the Fair Trade Commission conducts the necessary
investigations for a case, it shall compile a record of the substance of the
investigation, and whenever it takes a measure provided in paragraph (1) of
the preceding Article, it shall clearly record the date on which the measure was
taken and the results thereof.
Article 49 If the Fair Trade Commission seeks to issue an order pursuant to the provisions
of Article 7, paragraph (1) or (2) (including when they are applied mutatis mutandis
pursuant to Article 8-2, paragraph (2) and Article 20, paragraph (2)); Article 8-2,
paragraph (1) or (3); Article 17-2; or Article 20, paragraph (1) (hereinafter referred to as a
"cease and desist order"), it shall conduct a hearing of opinions with the would-be
addressee of the cease and desist order.
58
Article 50 (1) In a hearing set forth in the preceding Article, the Fair Trade Commission
shall notify the would-be addressee of the cease and desist order of the following matters
in writing, by a reasonable period of time prior to the date of hearing:
(i) The expected content of the cease and desist order
(ii) The facts found by the Fair Trade Commission, and the application of laws and
regulations thereto
(iii) the date and place of hearing
(iv) the name and location of the organization which has jurisdiction over affairs relating
to hearing
(2) The following matters shall be included in the written notice set forth in the preceding
paragraph:
(i) That the would-be addressee of the cease and desist order may state its opinions and
submit evidence on the date of hearing or submit a written statement and evidence
instead of appearance on the date of hearing.
(ii) That the would-be addressee of the cease and desist order, until the conclusion of the
hearing, may request inspection and a copy of evidence pursuant to the provisions of
Article 52.
Article 51 (1) The recipient of the notice set forth in, paragraph (1) (hereinafter referred to
as the "a party concerned") may appoint agents.
(2) Agents may perform any act relating to hearing individually on behalf of the party
concerned.
Article 52 (1) The party concerned may, between the time when notice of a hearing is given
pursuant to Article 50, paragraph (1) and the time when the hearing is concluded, submit a
59
request to the Fair Trade Commission to inspect or copy the evidence proving the facts
found by the Fair Trade Commission with respect to the case for hearing (as for copy, only
limited to a copy prescribed by the Rules of the Fair Trade Commission as one that was
submitted by the said party concerned or its employees or that records the statements of
the said party concerned or its employees; hereinafter the same applies in this Article). In
such a case, the Fair Trade Commission may not refuse to allow the person to inspect or
copy the evidence unless this is likely to infringe on the interests of a third party or unless
there are any other justifiable grounds.
(2) The preceding provisions shall not prevent the party concerned from further requesting
inspection or copy of the evidence, which becomes necessary in the course of the
procedures for hearing.
(3) The Fair Trade Commission may designate the date, time and place for inspection or
copy set forth in the preceding two paragraphs.
Article 53 (1) The procedures for hearing shall be presided by the staff member designated
by the Fair Trade Commission for each case (hereinafter referred to as the "designated
staff member").
(2) The Fair Trade Commission may not designate any staff members who performed the
duties of investigators with respect to the case pursuant to the preceding paragraph and
any other staff members who conducted the administrative affairs pertaining to
investigations into the said case as the presiding staff member for hearing.
Article 54 (1) The designated staff member shall have the investigators designated pursuant
to Article 47, paragraph (2) with respect to the case for which the procedures for hearing
shall be taken and any other staff members who conducted the administrative affairs
pertaining to investigations into the said case (in the following paragraph and paragraph
(3), and Article 56, paragraph (1), referred to as the "investigators, etc.") explain to the
party concerned appearing on the date of hearing the expected content of the cease and
desist order, the facts found by the Fair Trade Commission and major evidence among
those pursuant to Article 52, paragraph (1), and the application of laws and regulations
thereto at the outset of the first date of the hearing.
60
(2) The party concerned may appear on the date of hearing, state its opinions and submit
evidence and also address questions to the investigators, etc. questions, with the
permission of the designated staff member.
(3) When the designated staff member finds it necessary on the date of hearing, the
designated staff member may address questions to parties, call upon them to state their
opinions or submit evidence or request explanation from the investigators, etc.
(4)The proceedings (of a hearing) on the date of hearing shall be closed to the public.
Article 55 The party concerned may, instead of appearing on the date of hearing, submit
written statements and evidence to designated staff member on or before the date of
hearing.
Article 56 (1) When the results of the proceeding on the date of statements, submission of
evidence and questions by the party concerned and explanation by the investigators, etc.,
(in Article 58, paragraphs (1) and (2), referred to as the "statements, etc. by the party")
suggest that continuation of the hearing is necessary, the designated staff member may
assign a date for continuation.
(2) In the case referred to in the preceding paragraph, the parties shall be given, in advance,
notice in writing of the date and the location of the next hearing. However, it would be
sufficient to notify parties who appeared on the date of hearing of the above matters which
is made on the date of hearing.
Article 57 (1) The designated staff member may, where the parties fail to appear on the date
of a hearing without justifiable grounds and to submit written statements or evidence
pursuant to Article 55, conclude the hearing without giving any further opportunity for the
party to state its opinions and submit evidence.
(2) In addition to the case pursuant to the preceding paragraph, in cases where the parties fail
to appear on the date of the hearing and do not submit written statements or evidence
pursuant to Article 55, and when the party concerned is not expected to appear on a date
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for hearing for a considerable substantial period of time, the designated staff member may
ask submission of written statements and evidence.
Article 58 (1) The designated staff member shall prepare a record of the proceeding of the
statement of opinions by the party concerned , etc. on the date of hearing and the record
shall clearly indicate the gist of the statements raised by parties concerned with respect to
the matters listed in Article 50, paragraph (1), items (i) and (ii).
(2) The record pursuant to the prepared on each date of the hearing when the statement, etc.
by the party concerned is conducted, and where the statement, etc. by the party concerned
is not conducted, then promptly after the hearing is concluded.
(3) The record pursuant to paragraph (1) shall be accompanied by the evidence submitted
(written statements and evidence submitted when written statements and evidence are
submitted pursuant to Article 55).
(4) The designated staff member shall, promptly after the hearing is concluded, identify the
issues of the case for a hearing, prepare a written report containing the said issues and
submit it to the Fair Trade Commission together with the record pursuant to paragraph (1).
(5) Parties concerned may demand inspection of the record pursuant to paragraph (1) and the
written report pursuant to the preceding paragraph.
Article 59 (1) The Fair Trade Commission may, when it finds necessary in light of the
circumstances arising after conclusion of the hearing, order the designated staff member
to reopen a hearing by returning to the designated staff member the report submitted
pursuant to the preceding Article, paragraph (4).
(2) The provision of the main clause of Article 56, paragraph (2) applies mutatis mutandis to
the case of the preceding paragraph.
Article 60 In resolving the cease and resist order, the Fair Trade Commission shall do so
only after careful consideration of the contents of the record pursuant to Article 58,
paragraph (1) and the report pursuant to Article 58.
Article 61 (1) A cease and desist order must be rendered in writing, and the
written cease and desist order shall indicate the measures necessary to
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eliminate the violation or to ensure that the violation is eliminated, and the
facts found by the Fair Trade Commission and the application of laws and
regulations thereto, and the chairman and commissioners who attended the
meeting pursuant to the provisions of Article 65, paragraph (1) shall affix their
names and seals thereto.
(2) A cease and desist order shall take effect by serving a copy of the written
cease and desist order to the addressee thereof.
Article 62 (1) An order issued pursuant to the provisions of paragraph (1)
(including when these are applied mutatis mutandis by replacing certain terms
pursuant to Article 7-2, paragraph (2) and Article 8-3) or Article 7-2 (4), or
Articles 20-2 to 20-6 inclusive (hereinafter referred to as a "payment order")
must be rendered in writing, and the written payment order for a surcharge
shall state the amount of the surcharge to be paid, the basis of its calculation,
the violation to which it pertains, and the time limit for payment, and the
chairman and commissioners who attended the meeting pursuant to the
provisions of Article 65, paragraph (1) shall affix their names and seals thereto.
(2) A payment order shall take effect upon service of the written payment order
for a surcharge on the addressee thereof.
(3) The time limit for payment of the surcharge set forth in paragraph (1) shall
fall on the day on which seven months have elapsed from the day on which the
copy of the written payment order for a surcharge is issued.
(4) The provisions of Articles 49 to 60 inclusive apply mutatis mutandis to the payment
order. In this case, in Article 50, paragraph (1), item (i), the term "The expected content of
the cease and desist order" is deemed to be replaced with "Amount of the surcharge
intended to be ordered to be paid"; the term "The facts found by the Fair Trade
Commission, and the application of laws and regulations thereto" in item (ii) of the same
paragraph and the term "the facts found by the Fair Trade Commission" in Article 52,
paragraph (1) is deemed to be replaced with "The basis of calculation of the surcharge and
the violation related to the surcharge"; in Article 54, paragraph (1), the term "the expected
content of the cease and desist order, the facts found by the Fair Trade Commission and
major evidence among those provided for Article 52, paragraph (1), and the application of
laws and regulations to the facts found by the Fair Trade Commission" is deemed to be
replaced with "Amount of the surcharge intended to be ordered to be paid, the basis of
calculation of the surcharge and the violation related to the surcharge, and major evidence
among those pursuant to Article 52, paragraph (1) as applied mutatis mutandis by
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replacing certain terms pursuant to Article 62, paragraph (4)."
Article 63 (1) After the Fair Trade Commission has issued a payment order
pursuant to the provisions of Article 7-2, paragraph (1) (including when these
are applied mutatis mutandis by replacing certain terms pursuant to Article 72, paragraph (2); the same applies in the following paragraph) or Article 7-2
paragraph (4), if a final and binding decision on the same case imposes a fine
on the person who received said payment order, the Fair Trade Commission
shall issue a decision to modify the amount of the surcharge in the payment
order by reducing the amount thereof by an amount equivalent to one-half of
the amount of the fine imposed in the final and binding decision; provided,
however, that this does not apply if the amount of the surcharge in the
payment order does not exceed the amount equivalent to one-half of the
amount of the fine or if the amount after the modification is less than one
million yen.
(2) In the case under the proviso to the preceding paragraph, the Fair Trade
Commission shall render a decision to rescind the payment order pursuant to
the provisions of Article 7-2, paragraph (1) or (4).
(3) A decision under the provisions of the preceding two paragraphs must be
rendered in writing, and the written decision shall indicate the facts found by
the Fair Trade Commission and the application of laws and regulations thereto,
and the chairman and commissioners who attended the meeting pursuant to
the provisions of Article 65, paragraph (1) shall affix their names and seals
thereto.
(4) A decision under the provisions of paragraph (1) and (2) shall take effect by
serving a copy of the written decision on the addressee thereof.
(5) In a case under paragraph (1) and (2), the Fair Trade Commission shall
refund in money any amount already paid pursuant to the pre-modification or
pre-rescission payment order (excluding delinquency charges as provided in
Article 69, paragraph (2)), if there is some portion that should be refunded.
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Article 64 (1) An order issued pursuant to the provisions of Article8-4, paragraph
(1) (hereinafter referred to as a "competition restoration order") must be
rendered in writing, and the written competition restoration order shall
indicate the measures necessary to restore competition with respect to the
goods or services involved in the monopolistic situation, and the facts found by
the Fair Trade Commission and the application of laws and regulations thereto,
and the chairman and commissioners who attended the meeting pursuant to
the provisions of paragraph (1) of the following Article shall affix their names
and seals thereto.
(2) A competition restoration order shall take effect by serving a copy of the
written competition restoration order to the addressee thereof.
(3) No competition restoration order may be executed unless and until it
becomes final and binding.
(4) The provisions of Articles 49 to 60 inclusive apply mutatis mutandis to the
competition restoration order.
(5) If the Fair Trade Commission intends to notify under provisions of Article 50,
paragraph (1), as applied mutatis mutandis pursuant to the preceding paragraph, it shall
consult with the competent ministers for the business operated by the enterprise
concerned and hold a public hearing to obtain the opinions of the public.
Article 65 (1) Cease and desist orders, payment orders and competition
restoration orders and decisions under the provisions of this Section (excluding
payment decision pursuant to the provisions of Article 70, paragraph (2)) must
be reached in meetings of the chairman and commissioners.
(2) The provisions of Article 34, paragraphs (1), (2), and (4) apply mutatis
mutandis to the meetings set forth in the preceding paragraph.
(3) For a competition restoration order three or more people must concur,
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notwithstanding the provisions of Article 34, paragraph (2) as applied mutatis
mutandis pursuant to the preceding paragraph.
Article 66 Meetings of the Fair Trade Commission are not open to the public.
Article 67 Any public office or public organization concerned may, in order to
protect the public interest, provide its opinions to the Fair Trade Commission.
Article 68 After issuing a cease and desist order or a competition restoration
order becoming final and binding , the Fair Trade Commission may, if it
considers particularly necessary, take the measures, or order its staff members
to take the measures, necessary to ascertain whether the measures ordered in
that order are being taken pursuant to the provisions of Article 47.
Article 69 (1) If any person fails to pay a surcharge by the time limit for
payment, the Fair Trade Commission shall demand the payment by serving a
written demand designating a time limit for the payment.
(2) The Fair Trade Commission may, when it demanded payment pursuant to the
provisions of the preceding paragraph, collect delinquency charges calculated
at a rate of fourteen point five percent (14.5%) per annum of the amount of
such surcharge for the number of days intervening between the day after the
time limit for payment and the day of payment; provided, however, that this
does not apply if the delinquency charges involved are less than one thousand
yen.
(3) If the amount of delinquency charges, calculated pursuant to the provisions of
the preceding paragraph, includes numbers to the right of the hundreds place,
the delinquency charges are rounded down to the nearest hundred yen.
(4) If a person upon whom a demand has been served under the provisions of
paragraph (1) fails to make the payment by the designated time limit, the Fair
Trade Commission may collect the surcharge to said demand and delinquency
charges under the provisions of paragraph (2) pursuant to the national tax
delinquency procedures.
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(5) A statutory lien for a payment to be collected pursuant to the preceding
paragraph follows national and local taxes in priority, and the period of
prescription for payment follows the rules for national tax.
Article 70 (1) If the Fair Trade Commission has ordered payment of a surcharge
pursuant to the provisions of Article 7-2, paragraph (1) (including when these
are applied mutatis mutandis by replacing certain terms pursuant to
paragraph (2) of the same Article), paragraph (4) of the same Article, or Article
20-2 to 20-6 inclusive, in accordance with the provisions of Article 7-2,
paragraph (25) (including when these are applied mutatis mutandis by
replacing certain terms pursuant to Article 20-7), if there is some portion that
should be refunded (except in the cases provided in Article 63, paragraph (5)),
the Fair Trade Commission shall promptly refund in money any amount
already paid pursuant to these provisions.
(2) If the Fair Trade Commission refunds the amount set forth in the preceding
paragraph, it shall add to said amount the amount calculated by multiplying
by a rate specified by Cabinet Order, which must not exceed seven point two
five percent per annum, of said amount for the number of days in the period
between the day after the lapse of one month from the day after the amount
was paid and the day on which the decision was made to pay the refund.
(3) The provisions of the proviso to paragraph (2) and paragraph (3) of the
preceding Article apply mutatis mutandis to amounts added pursuant to the
provisions of the preceding paragraph.
Article 70-2 (1) When there has been an application for the approval set forth in
Article 11, paragraph (1) or (2), the Fair Trade Commission shall render a
decision to dismiss it if the Fair Trade Commission finds said application to be
groundless.
(2) The provisions of Article 45, paragraph (2) apply mutatis mutandis if an
application for approval set forth in the preceding paragraph has been filed.
(3) The provisions of Article 63, paragraph (3) and (4) apply mutatis mutandis to
a decision under the provisions of paragraph (1).
Article 70-3 (1) When the Fair Trade Commission has granted the approval set
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forth in Article 11, paragraph (1) or (2), if the Fair Trade Commission finds
that the facts required for said approval have ceased to exist or have changed,
it may issue a decision to rescind or modify the approval.
(2) The provisions of Article 49 to 60 inclusive and, Article 63, paragraph (3) and
(4) apply mutatis mutandis to a decision under the provisions of the preceding
paragraph.
(2) If the Fair Trade Commission finds that maintenance of a cease and desist
order or a competition restoration order is inappropriate due to changes in
economic conditions or other reasons, it may issue a decision to rescind or
modify the cease and desist order; provided, however, that this does not apply
if such action harms the interests of the addressee of the cease and desist order or
the competition restoration order.
(4) The provisions of Article 63, paragraph (3) and (4) apply mutatis mutandis to
a decision under the provisions of the preceding paragraph.
Article 70-4 (1) Upon petition by the Fair Trade Commission, if the court finds
there to be an urgent necessity of doing so, the court may order the person
engaging in an act suspected of violating the provisions of Article 3; Article 6;
Article 8; Article 9, paragraph (1) or(2); Article 10, paragraph (1); Article 11
paragraph (1); , Article 13; Article 14; Article 15, paragraph (1); Article 15-2,
paragraph (1); Article 15-3, paragraph (1); Article 16, paragraph (1); Article 17;
or Article 19 to temporarily stop engaging in the act, stop exercising voting
rights, or stop executing business as an officer of a company, or may rescind or
modify such order.
(2) The judicial decision under the provisions of the preceding paragraph is made
pursuant to the Non-Contentious Cases Procedures Act (Act No. 51 of 2011).
Article 70-5 (1) The execution of a judicial decision under the provisions of
paragraph (1) of the preceding Article may be stayed by depositing such
security deposits or securities (including book-entry transfer bonds, etc.,
provided in Article 278, paragraph (1) of the Act on Book-Entry Transfer of
Company Bonds, Shares, etc.; the same applies in the following paragraph) as
the court may fix.
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(2) If a deposit has been made pursuant to the provisions of the preceding paragraph and the
judicial decision pursuant to the preceding Article, paragraph (1) has become final and
binding, the court may, upon the petition of the Fair Trade Commission, sequestrate the
whole or a part of the security deposits or securities deposited.
(3) The provisions of the preceding Article, paragraph (2) apply mutatis mutandis to the
judicial decision pursuant to the preceding two paragraphs.
Article 70-6 Documents to be served are fixed by the Rules of the Fair Trade
Commission, in addition to what is provided by this Act.
Article 70-7 With regard to the service of documents, the provisions of Article 99,
Article 101, Article 103, Article 105, Article 106, Article 108 and Article 109 of
the Code of Civil Procedure (Act No. 109 of 1996) apply mutatis mutandis. In
this case, the term "court execution officer" in Article 99, paragraph (1) of the
Code is deemed to be replaced with "staff members of the Fair Trade
Commission", and the term "presiding judge" in Article 108 of said Code and
the term "court" in Article 109 of said Code is deemed to be replaced with "the
Fair Trade Commission".
Article 70-8 (1) The Fair Trade Commission may make service by publication in
the following cases:
(i) If the domicile, residence or other place where the would-be service recipient
should be served is unknown
(ii) For service that should be made in a foreign country, if the provisions of
Article 108 of the Code of Civil Procedure as applied mutatis mutandis by
replacing certain terms pursuant to the preceding Article cannot be applied,
or if it is recognized that service cannot be made based on said provisions
(iii) If, after the lapse of six months from the date on which a competent
foreign government agency was commissioned to make service pursuant to
the provisions of Article 108 of the Code of Civil Procedure as applied
mutatis mutandis by replacing certain terms pursuant to the preceding
Article, documents certifying that service was made are not received.
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(2) Service by publication is made by posting on the notice board of the Fair
Trade Commission to the effect that the documents to be served will be
delivered at any time to the person who is to be served.
(3) Service by publication takes effect after two weeks from the date on which the
posting under the provisions of the preceding paragraph began.
(4) Regarding service by publication in lieu of service to be made in a foreign
country, the time period set forth in the preceding paragraph is six weeks.
Article 70-9 (1) Notice of a disposition, etc. pursuant to Article 2, item (vii) of the
Act on Use of Information and Communications Technology in Administrative
Procedure (Act No. 151 of 2002), that is to be effected by the service of
documents pursuant to the provisions of this Act or the Rules of the Fair Trade
Commission, may not be effected using an electronic data processing system
("electronic data processing system" as provided in Article 4, paragraph (1) of
the Act on Use of Information and Communications Technology in
Administrative Procedure; hereinafter the same applies in this Article) if the
recipient of the notice of the disposition, etc. has not indicated via the method
specified in the Rules of the Fair Trade Commission that it will be served,
notwithstanding the provisions of said paragraph.
(2) Whenever a staff member of the Fair Trade Commission engages in
administrative affairs related to notice of a disposition, etc. as provided in the
preceding paragraph using an electronic data processing system, the staff
member shall record matters related to the service under the provisions of
Article 109 of the Code of Civil Procedure as applied mutatis mutandis by
replacing certain terms pursuant to Article 70-7 in a file stored in a computer
(including input and output devices) used by the Fair Trade Commission via an
electronic data processing system instead of preparing and submitting a
document that states those matters.
Article 70-10 In addition to what is provided for in this Act, necessary matters
with respect to Fair Trade Commission investigation and any other matters
relating to the processing of cases, as well as those with respect to deposits set
forth in Article70-5, paragraph (1) are provided by Cabinet Order.
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Article 70-11 The provisions of Chapters II and III of the Administrative
Procedure Act (Act No. 88 of 1993) shall not apply to cease and desist orders,
payment orders, competition restoration orders or measures connected with
applications for approval provided in Article 70-2, paragraph (1), decisions or
any other measures under the provisions of this Section (including measures
effected by investigators under the provisions of Article 47, paragraph (2) or by
designated staff member under the provisions of this Section) that have been
rendered by the Fair Trade Commission.
Article 70-12 Cease and desist orders, payment orders and competition
restoration orders as well as decisions and any other measures under the
provisions of this Section (including measures effected by investigators under
the provisions of Article 47, paragraph (2) or by designated staff member under
the provisions of this Section) that have been rendered by the Fair Trade
Commission shall not be appealed under the Administrative Appeal Act (Act
No. 160 of 1962).
Section 3 Miscellaneous Provisions
Article 71 If the Fair Trade Commission seeks to designate specific trade
practices in a specific field of business pursuant to the provisions of Article 2,
paragraph (9), item (vi), it shall first hear the opinions of enterprises that are
engaged in the same type of business as the enterprises who employ said
specific trade practices and hold a public hearing to obtain the opinions of the
public, and shall then make the designation after due consideration of the
opinions presented.
Article 72 Designation under the provisions of Article 2, paragraph (9), item (vi)
is effected by public notice.
Article 73 Deleted.
Article 74 (1) If the Fair Trade Commission is convinced, after an investigation
conducted pursuant to the procedures provided in Chapter XII, that a criminal
offense has taken place, it shall file an accusation with the Prosecutor General.
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(2) In addition to what is provided for in the preceding paragraph, if the Fair
Trade Commission believes that a crime violating the provisions of this Act has
taken place, it shall file an accusation with the Prosecutor General.
(3) If the Prosecutor General has decided not to prosecute a case that is the
subject of an accusation under the provisions of the preceding two paragraphs,
the Prosecutor General shall promptly submit a written report to that effect to
the Prime Minister through the Minister of Justice, giving the reasons therefor.
Article 75 Witnesses or expert witnesses who have been ordered to appear or to
give expert opinions pursuant to the provisions of Article 47, paragraph (1),
item (i) or (ii); Article 47, paragraph (2); may claim travel expenses and
allowances set forth by Cabinet Order.
Article 76 (1) The Fair Trade Commission may establish rules with respect to its
internal disciplines, proceedings of cases and necessary procedures for
notifications, applications for approval, and other matters.
(2) In proving rules with respect to the proceedings of cases pursuant to the
provisions of the preceding paragraph, the Fair Trade Commission shall keep
in mind the need to ensure that said proceedings are duly undertaken,
including ensuring that the would-be addressee of the cease and desist order, the
payment order and the competition restoration order and the decision pursuant
to the provisions of the preceding Section (hereinafter referred to as a " cease
and desist order, etc.") has sufficient opportunity to state and prove the
respondent's claims, etc.
Chapter IX Legal Actions
Article 77 The Fair Trade Commission is the defendant in the action for the
judicial review of an administrative disposition provided for in Article 3,
paragraph (1) of the Administrative Case Litigation Act (Act No. 139 of 1962)
in connection with a cease and desist order, etc.
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Article 78 (1) If an action to suspend or prevent an infringement pursuant to the
provisions of Article 24 has been filed, the court may issue a ruling ordering
the plaintiff to provide adequate security, at the petition of the defendant.
(2) In order to file the petition set forth in the preceding paragraph, the fact that
the action set forth in said paragraph has been filed for a wrongful purpose
(meaning for the purpose of acquiring a wrongful benefit, for the purpose of
harming another person, or for any other wrongful purpose) shall be shown by
prima facie evidence.
Article 79 (1) When an action to suspend or prevent an infringement under the
provisions of Article 24 has been filed, the court shall notify the Fair Trade
Commission to that effect.
(2) When an action set forth in the preceding paragraph has been filed, the court
may ask for the opinion of the Fair Trade Commission with respect to the
application of this Act in the case concerned or with respect to other necessary
matters.
(3) When an action set forth in paragraph (1) has been filed, the Fair Trade
Commission may, with the permission of the court, state an opinion to the
court on the application of this Act in the case concerned or with respect other
necessary matters.
Article 80 (1) In an action to suspend or prevent an infringement under the
provisions of Article 24, the court may, upon petition of a party, order a party
to produce any documents necessary to prove the alleged infringement;
provided, however, this does not apply if the holder of the documents has
justifiable grounds for refusing to produce them.
(2) If the court finds it to be necessary in order to ascertain the existence of a
justifiable reason prescribed in the proviso to the preceding paragraph, it may
require the holder of the documents to produce said documents. In such a case,
no person may request disclosure of the produced documents.
(3) In a case under the preceding paragraph, if the court finds it necessary to
disclose the documents prescribed in the second sentence of the preceding
paragraph, and to hear the opinions of a party, etc. (meaning a party (or for a
juridical person, meaning its representative), an agent (excluding counsel or an
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assistant), an employee, or other worker of a party; the same applies in
paragraph (1) of the following Article), it may disclose said documents to the
party, etc. , counsel or an assistant.
(4) The provisions of the preceding three paragraphs apply mutatis mutandis to
the production of objects for inspection necessary to prove the alleged acts of
infringement in an action to suspend or prevent an infringement under the
provisions of Article 24.
Article 81 (1) In an action to suspend or prevent an infringement under the
provisions of Article 24, if a prima facie showing of both of the following
grounds has been made with regard to a trade secret (meaning a trade secret
as provided in Article 2, paragraph (6) of Unfair Competition Prevention Act
(Act No. 47 of 1993); the same applies hereinafter) held by a party to the action,
the court may order the parties, etc. , counsel, or an assistant not to use the
trade secret for any purpose other than pursuing the action, and not to disclose
the trade secret to anyone other than a person subject to the order prescribed
in this paragraph; provided, however, that this does not apply if the party, etc. ,
counsel, or the assistant had already acquired or held the trade secret by
means other than reading the brief prescribed in item (i) or through the
examination or disclosure of evidence prescribed in the same item:
(i) The trade secret held by the party, is written in an already-produced or tobe-produced brief, or included in the contents of already-examined or to-beexamined evidence (including documents disclosed pursuant to the provisions
of the preceding three paragraphs)
(ii) The party's business activities based on the trade secret under the
preceding item are likely to be hindered by the use of said trade secret for
purpose other than pursuing the action or its disclosure, and it is necessary
to restrict the use or disclosure of the trade secret in order to prevent this.
(2) A petition for the order prescribed in the preceding paragraph (hereinafter
referred to as the "protective order") must be in writing and include the
following matters:
(i) A person to whom the protective order to be issued.
(ii) Facts that are sufficient for identifying the trade secret to be the subject to
the protective order
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(iii) Facts that fall under the grounds listed in each of the items of the
preceding paragraph
(3) Whenever the court issues a protective order, it shall serve a written decision
on the person to whom the protective order was issued.
(4) A protective order takes effect when a written decision is served on the person
to whom the protective order was issued.
(5) If the court dismisses a petition for a protective order, the party may lodge an
immediate appeal against the decision.
Article 82 (1) A petitioner for a protective order or a person to whom a protective
order was issued may file a petition for rescission of the protective order with
the court that retains the case record (if no such court exists, the court that
issued the protective order) on the grounds that the requirement prescribed in
the preceding Article have not been met or are no longer met.
(2) Whenever the court makes a decision on a petition for rescission of a
protective order, it shall serve a written decision on the petitioner and the
adverse party.
(3) An immediate appeal may be lodged against a decision on the petition for
rescission of a protective order.
(4) A decision to rescind a protective order shall not take effect until the decision
becomes final and binding.
(5) When a court has rendered a decision to dismiss a protective order, if the
court had issued a protective order for the protection of the trade secret
against any person other than the petitioner for rescission of the protective
order or the adverse party during the same action in which the protective order
was issued, the court shall immediately notify the person of its decision to
rescind the protective order.
Article 83 (1) When a court has issued a ruling under Article 92, paragraph (1)
of the Code of Civil Procedure with regard to the case record for an action in
which a protective order has been issued (excluding an action in which all the
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protective orders have been rescinded), if a party requests to conduct an
inspection, etc. of the portion of the record that includes the secret provided for
in the same paragraph, and the person who make the request was not subject
to a protective order in the action, the court clerk shall, immediately after the
request is made, notify the party that filed the petition under the same
paragraph (excluding the requestor; the same applies in paragraph (3)) of the
fact that such a request was made.
(2) In a case under the preceding paragraph, the court must not allow the party
who performed the procedure for the request under the same paragraph to
conduct an inspection, etc. of the portion of the record that represents the
secret until two weeks have passed since the date of the request (if a petition
for a protective order against the person who performed the procedure for the
request was filed on or before such date, until the date on which the decision
on the petition becomes final and binding).
(3) The provisions of the preceding two paragraphs shall not apply if all parties
who filed a petition under Article 92, paragraph (1) of the Code of Civil
Procedure consent to allow the party who made the request under paragraph
(1) to conduct an inspection, etc. of the portion of the record that represents the
secret.
Article 84 (1) Whenever an action for damages under the provisions of Article 25
has been filed, the court may ask for the opinion of the Fair Trade Commission
with respect to the amount of damages caused by such violations as provided in
said Article.
(2) If a claim for damages under the provisions of Article 25 is made in court
proceedings for the purpose of effecting a set-off, the provisions of the
preceding paragraph apply mutatis mutandis.
Article 84-2 (1) When a court listed in one of the following items has jurisdiction
over an action to suspend or prevent an infringement under the provisions of
Article 24 pursuant to the provisions of Articles 4 and 5 of the Code of Civil
Procedure, said action may also be filed with the court set forth in the relevant
item:
(i) A district court located within the jurisdiction of the Tokyo High Court
(excluding Tokyo District Court), Osaka District Court, Nagoya District
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Court, Hiroshima District Court, Fukuoka District Court, Sendai District
Court, Sapporo District Court or Takamatsu District Court: Tokyo District
Court
(ii) A district court located within the jurisdiction of the Osaka High Court
(excluding Osaka District Court): Tokyo District Court or Osaka District
Court
(iii) A district court located within the jurisdiction of the Nagoya High Court
(excluding Nagoya District Court): Tokyo District Court or Nagoya District
Court
(iv) A district court located within the jurisdiction of the Hiroshima High Court
(excluding Hiroshima District Court): Tokyo District Court or Hiroshima
District Court
(v) A district court located within the jurisdiction of the Fukuoka High Court
(excluding Fukuoka District Court): Tokyo District Court or Fukuoka District
Court
(vi) A district court located within the jurisdiction of the Sendai High Court
(excluding Sendai District Court): Tokyo District Court or Sendai District
Court
(vii) A district court located within the jurisdiction of the Sapporo High Court
(excluding Sapporo District Court): Tokyo District Court or Sapporo District
Court
(viii) A district court located within the jurisdiction of the Takamatsu High
Court (excluding the Takamatsu District Court): Tokyo District Court or
Takamatsu District Court
(2) With respect to the application of the provisions of Article 7 of the Code of
Civil Procedure to a case in which several claims are made in one action,
including a claim under the provisions of Article 24 of this Act, the term
"Article 4 to the preceding Article inclusive (excluding Article 6, paragraph
(3))" in Article 7 of the Code of Civil Procedure is deemed to be replaced with
"Article 4 to the preceding Article inclusive (excluding Article 6, paragraph (3)),
and Article 84-2, paragraph (1) of the Act on Prohibition of Private
Monopolization and Maintenance of Fair Trade."
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Article 84-3 The jurisdiction of the first instance over any action involving a
crime provided for in Articles 89 to 91 inclusive shall lie in the district courts.
Article 84-4 If a court listed in one of the items under Article 84-2, paragraph (1)
has jurisdiction over a case connected with crimes provided in the preceding
Article pursuant to the provisions of Article 2 of the Code of Criminal
Procedure (Act No. 131 of 1948), the court prescribed in the relevant item also
has jurisdiction over the case.
Article 85 Any following suit and case is subject to the exclusive jurisdiction of the Tokyo
District Court:
(i) Action for the judicial review of an administrative disposition under Article 3,
paragraph (1) of the Administrative Case Litigation Act in connection with the cease
and desist order, etc.
(ii) Any case provided for in Article 70-4, paragraph (1), Article 70-5, paragraphs (1) and
(2), Article 97 and Article 98.
Article 85-2 The jurisdiction of the first instance over any actions concerning compensation
for damages pursuant to the provisions of Article 25 shall lie with the Tokyo District
Court.
Article 86 (1) The Tokyo District Court shall conduct a proceeding and make a judicial
decision by a panel of judges consisting of three judges for the action or suit and cases
provided for in Article 85, as well as the respective items and actions provided for in the
preceding Article.
(2) Notwithstanding the provisions of the preceding paragraph, in the Tokyo District Court,
with regard to the suit and case preceding paragraph, a panel of five judges may make an
order to the effect that said panel shall conduct a proceeding and make a judicial decision
on that case.
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(3) In the case of the preceding paragraph, the panel may not contain three or more assistant
judges simultaneously, and not assistant judge may serve as the presiding judge.
Article 87 With regard to the case subject to appeal to the Tokyo High Court against a final
judgment made by the Tokyo District Court for the action or suit set forth in Article 85,
item (i) or the action or suit pursuant to Article 85-2 or the case subject to appeal to the
Tokyo High Court against a ruling made by the Tokyo District Court for the case as set
forth in Article 85, item (ii), in the Tokyo High Court, a panel of five judges may make an
order to the effect that said panel shall conduct a proceeding and make a judicial decision
on that case.
Article 87-2 If an action to suspend or prevent an infringement pursuant to the
provisions of Article 24 has been filed, and an action pursuant to the same
Article in connection with the same or similar acts is pending before another
court, when the court finds it proper in consideration of the addresses or
locations of the parties, addresses of witnesses to be examined, the
commonality of issues or evidence, and any other circumstances, the court may
transfer, the case in whole or in part to said other court or other courts having
jurisdiction over said action, by court's own authority pursuant to the
provisions of Article 84-2, paragraph (1).
Article 88 With respect to action for the judicial review of an administrative
disposition under Article 3, paragraph (1) of the Administrative Case
Litigation Act in connection with the cease and desist order, etc., the provisions of
Article 6 of the Act on the Authority of the Minister of Justice over Suits
Affecting the Interests of State (Act No. 194 of 1947) shall not apply.
Chapter X Miscellaneous Provisions
Article 88-2 If any Cabinet Order or Rules of the Fair Trade Commission are
established, revised or abolished pursuant to the provisions of this Act,
necessary transitional measures (including transitional measures relating to
penal provisions) may be provided by virtue of the Cabinet Order or the Rules
of the Fair Trade Commission to the extent they are considered reasonably
necessary along with such establishment, revision or abolition.
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Chapter XI Penal Provisions
Article 89 (1) A person who falls under any of the following items is punished by
imprisonment with work for not more than five years or by a fine of not more
than five million yen:
(i) A person who, in violation of the provisions of Article 3, has effected private
monopolization or unreasonable restraint of trade
(ii) A person who, in violation of the provisions of Article 8, item (i), has
effected substantial restraint of competition in any particular field of trade
(2) An attempt to commit a crime falling under the preceding paragraph will be
punished.
Article 90 A person who falls under any of the following items is punished by
imprisonment with work for not more than two years or by a fine of not more
than three million yen:
(i) A person who, in violation of the provisions of Article 6 or Article 8, item (ii)
has entered into an international agreement or an international contract
which contains such matters as fall under unreasonable restraint of trade
(ii) A person who violated the provisions of Article 8, item (iii) or (iv)
(iii) A person who fails to comply with a cease and desist order or a competition
restoration order after it has become final and binding
Article 91 A person who has acquired or held shares in violation of the
provisions of Article 11, paragraph (1), who has held shares in violation of
provisions of paragraph (2) of the same Article, or who has violated, regarding
the prohibition or restriction pursuant to these provisions, the provisions of
Article 17, is punished by imprisonment with work for not more than one year
or by a fine of not more than two million yen.
Article 91-2 A person who falls under any of the following items is punished by a
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fine of not more than two million yen:
(i) A person who, in violation of the provisions of Article 9, paragraph (4), has
failed to submit a written report or submitted a written report with a false
description
(ii) A person who, in violation of the provisions of Article 9, paragraph (7), has
failed to notify or submitted a written notification with a false description
(iii) A person who, in violation of the provisions of Article 10, paragraph (2),
has failed to notify or submitted a written notification with a false
description
(iv) A person who has acquired shares in violation of the provisions of Article
10, paragraph (8)
(v) A person who, in violation of the provisions of Article 15, paragraph (2) has
failed to notify or submitted a written notification with a false description
(vi) A person who, in violation of the provisions of Article 10, paragraph (8) as
applied mutatis mutandis by replacing certain terms pursuant to Article 15,
paragraph (3), has effected a register of an incorporation or a change as a
result of a merger
(vii) A person who, in violation of the provisions of Article 15-2, paragraphs (2)
and (3) has failed to notify or submitted a written notification with a false
description
(viii) A person who, in violation of the provisions of Article 10, paragraph (8) as
applied mutatis mutandis by replacing certain terms pursuant to Article 15-2,
paragraph (4), has effected a register of incorporation as a result of a joint
incorporation-type company split or a register of change as a result of an
absorption-type split
(ix) A person who, in violation of the provisions of Article 15-3, paragraph (2),
has failed to give notification or submitted a written notification with a false
description
(x) A person who has effected a register of incorporation as a result of a joint
share transfer in violation of the provisions of Article 10, paragraph (8) as
applied mutatis mutandis by replacing certain terms pursuant to Article 15-3,
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paragraph (3)
(xi) A person who, in violation of the provisions of Article 16, paragraph (2),
has failed to give notification or submitted a written notification with a false
description
(xii) Any person who, in violation of the provisions of Article 10, paragraph (8)
as applied mutatis mutandis by replacing certain terms pursuant to Article
16, paragraph (3), has carried out an act falling under Article 16, paragraph
(1), item (i) or (ii)
(xiii) A person who, in violation of the provisions of Article 23, paragraph (6),
has failed to notify or has submitted a written notification with a false
description
Article 92 A person who has committed any of the crimes provided in Articles 89
to 91 inclusive may be punished by cumulative imposition of both
imprisonment with work and a fine, in accordance with the circumstances.
Article 93 A person who violates the provisions of Article 39 is punished by
imprisonment with work for not more than one year or by a fine of not more
than one million yen.
Article 94 A person who falls under any of the following items is punished by
imprisonment with work for not more than one year or by a fine of not more
than three million yen:
(i) A person concerned with a case or any witness who, in violation of the
measures taken against him/her pursuant to the provisions of Article 47,
paragraph (1), item (i) or paragraph (2), has failed to appear or to make a
statement, or has made a false statement, or failed to submit a report, or
submitted a false report
(ii) An expert witness who, in violation of the measures taken with regard to
him/her pursuant to the provisions of Article 47, paragraph (1), item (ii) or
paragraph (2), has failed to appear or to give an expert opinion, or submitted
a false expert opinion
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(iii) A holder of the materials who, in violation of the objects taken with regard
to him/her pursuant to the provisions of Article 47, paragraph (1), item (iii)
or paragraph (2), has failed to submit the objects
(iv) A person who has refused, obstructed or evaded the inspection pursuant to
the provisions of Article 47, paragraph (1), item (iv) or paragraph (2)
Article 94-2 A person who, in violation of the measures pursuant to the
provisions of Article 40, has failed to appear or to submit a report, information
or materials, or submitted a false report, information or materials is punished
by a fine of not more than two hundred thousand yen.
Article 94-3 (1) A person who violates a protective order is punished by
imprisonment with work for not more than five years or by a fine of not more
than five million yen, or both.
(2) The offence prescribed in the preceding paragraph may not be persecuted
without a complaint.
(3) The offence prescribed in paragraph (1) shall also apply to a person who
committed it outside Japan.
Article 95 (1) If a representative of a juridical person, or an agent, an employee
or any other worker of a juridical person or of an individual has, with regard to
the business or property of said juridical person or individual, violated the
provisions referred to in any of the following items, in addition to the offender
being punished, the juridical person or individual is sentenced to the fine
prescribed in each of those items.
(i) Article 89: Fine of not more than five hundred million yen.
(ii) Article 90, item (iii) (excluding violation of an order pursuant to the
provisions of Article 7, paragraph (1); or Article 8-2, paragraph (1) or (3)
(limited to portions ordering the party to cease and desist from the act in
violation of the provisions of Article 3 or Article 8, item (i))): Fine of not more
than three hundred million yen.
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(iii) Article 90, item (i), (ii), or (iii) (limited to violation of an order pursuant to
the provisions of Article 7, paragraph (1) or Article 8-2, paragraph (1) or (3)
(limited to portions ordering the party to cease and desist from the act in
violation of the provisions of Article 3 or Article 8, item (i))), Article 91,
Article 91-2 or Article 94: Fine as provided in each of the Articles.
(2) If a representative, manager, agent, employee or any other worker of an
organization without juridical personality has, with regard to the business or
property of said organization, violated the provisions referred to in any of the
following items, in addition to the offender being punished, the organization is
sentenced to the fine prescribed in each of those items.
(i) Article 89: Fine of not more than five hundred million yen
(ii) Article 90, item (iii) (excluding violation of an order pursuant to the
provisions of Article 7, paragraph (1) or Article 8-2, paragraph (1) or (3)
(limited to portions ordering the party to cease and desist from the act in
violation of the provisions of Article 3 or Article 8, item (i))): Fine of not more
than three hundred million yen
(iii) Article 90, item (i), (ii), or (iii) (limited to violation of an order pursuant to
the provisions of Article 7, paragraph (1) or Article 8-2, paragraph (1) or (3)
(limited to portions ordering the party to cease and desist from the act in
violation of the provisions of Article 3 or Article 8, item (i))), or Article 94:
Fine as provided in each of the Articles
(3) If a representative of a juridical person, or an agent, employee or any other of
a juridical person or an individual has violated paragraph (1) of the preceding
Article, in addition to the offender being punished, the juridical person is
sentenced to a fine of not more than three hundred million yen, or the
individual is sentenced to the fine prescribed in the same paragraph.
(4) The period of prescription of a penalty of fine to be imposed a juridical person,
an individual or organization pursuant to the provisions of paragraph (1) or (2)
in regard to a violation of Article 89 is the same as that for the offenses
prescribed in the same Article.
(5) In a case under paragraph (2), the representative or manager represents the
organization in procedural acts, and the provisions of the Code of Criminal
Procedure that are applicable to procedural acts if a juridical person is the
accused or the suspect apply mutatis mutandis.
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(6) The period of prescription for a sentence to a fine imposed upon a juridical
person or an individual pursuant to the provisions of paragraph (3) in regard to
a violation of paragraph (1) of the preceding Article is the same as that for the
offences prescribed in the same paragraph.
Article 95-2 If a violation of Article 89, paragraph (1), item (i); Article 90, item
(i) or (iii); or Article 91 occurs, the representative of the relevant juridical
person (excluding those that fall under the category of a trade association for a
violation of Article 90, item (i) or (iii)) that has failed to take necessary
measures to prevent the violation despite the knowledge of a plan for the
violation or that has failed to take necessary measures to rectify the violation
despite the knowledge of the violation, shall also be punished by the fine as
prescribed in the relevant Article.
Article 95-3 (1) If a violation of Article 89, paragraph (1), item (ii) or Article 90
occurs, an officer or any other officer or a manager of the relevant trade
association or its constituent enterprises (including, if the officer, employee,
agent or other person who has engaged in the act for the benefit of an
enterprise was a constituent enterprise, said enterprise) that has failed to take
necessary measures to prevent the violation despite the knowledge of a plan for
the violation or who has failed to take necessary measures to rectify the
violation despite knowledge of the violation, shall also be punished by the fine
as prescribed in each of the Articles.
(2) If an officer or any other officer or a manager of the relevant trade association
or its constituent enterprises as provided in the preceding paragraph is a
juridical person or any other organization, the provisions of the preceding
paragraph apply to the officer or other officer or manager of the organization.
Article 95-4 (1) If the court finds that sufficient grounds exist, it may sentence a
trade association to dissolution, simultaneously with the rendition of
punishments as provided in Article 89 or Article 90, paragraph (1), item (ii).
(2) If a trade association has been sentenced to dissolution pursuant to the
provisions of the preceding paragraph, the trade association is dissolved by
virtue of the sentence, notwithstanding the provisions of any other laws or
regulations, articles of incorporation or other stipulations.
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Article 96 (1) A crime under Articles 89 to 91 inclusive is considered only after
an accusation is filed by the Fair Trade Commission.
(2) The accusation set forth in the preceding paragraph is made in writing.
(3) In filing an accusation under paragraph (1), whenever the Fair Trade
Commission finds it to be appropriate for the sentence under paragraph (1) of
the preceding Article or Article 100, paragraph (1), item (i) to be rendered with
respect to a crime related to the accusation, the Fair Trade Commission may
state to that effect in the written accusation set forth under the preceding
paragraph.
(4) The accusation under paragraph (1) shall not be revoked after institution of
prosecution.
Article 97 Any person who has violated a cease and desist order is subject to a
non-criminal fine of not more than five hundred thousand yen; provided,
however, that the foregoing does not apply if the relevant act is to be punished.
Article 98 Any person who has violated a judicial decision under the provisions
of Article 70-4, paragraph (1) is punished by a non-criminal fine of not more
than three hundred thousand yen.
Article 99 Deleted.
Article 100 (1) In a case under Article 89 or 90, the court may issue the following
sentences simultaneously with the rendition of punishments, depending on the
circumstances; provided, however, that the sentence under item (i) is limited to
a case in which the relevant patent right, or exclusive or non-exclusive license
for a patented invention belongs to the criminal:
(i) That the patent under patent right or the exclusive or non-exclusive license
for the patented invention which was used for the violation related is
revoked
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(ii) That the criminal may not enter into a contract with the government for a
period of not less than six months and not more than three years after the
judgment becoming final and binding
(2) When a judgment with a sentence as provided in item (i) of the preceding
paragraph becomes final and binding, the court shall send a copy thereof to the
Commissioner of the Patent Office.
(3) The Commissioner of the Patent Office shall, upon receipt of the copy of the
judgment under the provisions of the preceding paragraph, revoke the patent
under the patent right, or the exclusive or non-exclusive license for the
patented invention.
Chapter XII Investigation of Criminal Cases, Etc.
Article 101 (1) Whenever necessary in the investigation of a criminal case (cases
related to crimes in Articles 89 to 91 inclusive; hereinafter the same applies in
this Chapter), a staff member of the Fair Trade Commission (limited to the
staff members designated by the Fair Trade Commission; hereinafter referred
to in this Chapter as "FTC staff member(s)") may request a criminal suspect or
witness (hereinafter referred to in this paragraph as "criminal suspect(s), etc.")
to appear before the Fair Trade Commission, may question a criminal suspect,
etc. , inspect an object possessed or abandoned by a criminal suspect, etc. , and
may retain an object voluntarily submitted or abandoned by a criminal suspect,
etc.
(2) In the course of an investigation in a criminal case, an FTC staff member may
inquire with a public agency or public or private organization and request that
the agency or organization report the necessary matters.
Article 102 (1) Whenever necessary in the investigation of a criminal case, an
FTC staff member may conduct an on-site inspection, search, or seizure, by
virtue of a warrant issued in advance by a judge of the district court or
summary court having jurisdiction over the location of the Fair Trade
Commission (Note: Tokyo District Court and Tokyo Summary Court).
(2) In a case under the preceding paragraph requiring urgency, an FTC staff
member may take the measures under the preceding paragraph by virtue of a
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warrant issued in advance by a judge of the district court or the summary court
having jurisdiction over the location of the site to be inspected, the site, body or
an object to be searched, or the object to be seized.
(3) When an FTC staff member requests a warrant provided for in paragraph (1)
or the preceding paragraph (hereinafter referred to in this Chapter as a
"warrant"), the FTC staff member shall submit materials that confirm the
existence of a criminal case.
(4) If a request provided in the preceding paragraph is made, the judge of the
district court or the summary court shall issue a warrant to the FTC staff
member with the judge's name and seal affixed thereto and the following
information entered thereon: the site to be inspected; the site, body or object to
be searched; or the object to be seized; the government position and name of
the person making the request; the warrant's valid period; the fact that the
inspection, search or seizure may not be initiated and the warrant must be
returned after the expiration of the valid period; the date of issuance of the
warrant; and the name of the court to which the judge belongs. In this case, the
name of the criminal suspect and the fact of a criminal offense shall, if known,
also be written.
(5) An FTC staff member may deliver a warrant to another FTC staff member
and have that FTC staff member conduct the on-site inspection, search or
seizure.
Article 103 (1) Whenever necessary in the investigation of a criminal case, after
receipt of a warrant, an FTC staff member may seize postal items,
correspondence or documents related to telegrams that are sent by or to a
criminal suspect and stored or possessed by persons handling communications
affairs pursuant to the provisions of laws and regulations.
(2) After receipt of a warrant, an FTC staff member may seize postal items,
correspondence or documents related to telegrams that are stored or possessed
by persons handling communications affairs pursuant to the provisions of laws
and regulations and do not fall under the provisions of the preceding
paragraph, to the extent that there are sufficient grounds to suspect each of
the items is related to a criminal case.
(3) If the measures under the preceding two paragraphs have been taken, FTC
staff members shall notify the sender or recipient of the items to that effect;
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provided, however, that this does not apply if notifying the sender or recipient
is likely to hinder the investigation of the criminal case.
Article 104 (1) No on-site inspection, search or seizure may be conducted during
the period from sunset to sunrise unless it is specified on the warrant that the
warrant may be executed at night.
(2) If it is considered to be necessary, an on-site inspection, search or seizure that
was initiated before sunset may be continued beyond sunset.
Article 105 Warrants for on-site inspection, search or seizure must be shown to
the person that is subject to such measures.
Article 106 When conducting questioning, inspection, retention, on-site
inspection, search or seizure pursuant to the provisions of this Chapter, an
FTC staff member shall carry an identification card that indicates their official
status and produce it at the request of persons concerned.
Article 107 (1) Whenever necessary for conducting an on-site inspection, search,
or seizure, an FTC staff member may open locks, open seals and take other
necessary measures.
(2) The measures set forth in the preceding paragraph may be taken in relation
to objects retained or seized.
Article 108 FTC staff members may prohibit any person from entering or leaving
the site without permission while the questioning, inspection, retention, on-site
inspection, search or seizure pursuant to the provisions of this Chapter are
being conducted.
Article 109 (1) When conducting an on-site inspection, search or seizure of a
person's residence, or a residence, building or other site guarded by a person,
an FTC staff member shall have the owner or superintendent (including their
representative or agent or other person who can act on their behalf), or their
employee or cohabitating relative who has attained the age of majority witness
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it.
(2) If it is not possible, in a case under the preceding paragraph, to have a person
provided in that paragraph witness the on-site inspection, search, or seizure,
an FTC staff member shall have a neighbor who has attained the age of
majority or a local police official or local government official witness it.
(3) Any body-search of a female must be conducted in the presence of a female
witness over the age of majority; provided, however, that this does not apply to
urgent cases.
Article 110 If necessary in the course of an on-site inspection, search or seizure,
an FTC staff member may request the assistance of police officials.
Article 111 After carrying out questioning, inspection, retention, on-site
inspection, search or seizure pursuant to the provisions of this Chapter, an
FTC staff member shall prepare a written report that states the date when the
measures were taken and the findings, and show it to the person who was
questioned or the witness, and, along with the person who was questioned or
the witness, affix the person's name and seal thereto; provided, however, that
if the person who was questioned or the witness does not affix the person's
name and seal thereto or is unable to do so, it is sufficient to make
supplementary note to that effect.
Article 112 After carrying out retention or seizure, an FTC staff member shall
prepare an inventory of the objects retained or seized and deliver a copy of the
inventory to the owner or holder of the objects retained or seized or a person
who can act in lieu of the owner or holder.
Article 113 Regarding a retained or seized object that is difficult to transport or
store, an FTC staff member may, with the consent of the owner or holder of the
object or other person that the FTC staff member finds to be appropriate, have
such a person store the object after receiving a safekeeping receipt.
Article 114 (1) After a retained or seized object no longer needs to be held in
custody, the Fair Trade Commission shall return the object to the person to
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whom it should be returned.
(2) If the Fair Trade Commission cannot return a retained or seized object set
forth in the preceding paragraph because it does not know the domicile or
residence of the person to whom the object should be returned or because of
another reason, the Fair Trade Commission shall issue a public notice to that
effect.
(3) If no request is made for the return of a retained or seized object regarding
which a public notice has been issued pursuant to the preceding paragraph
after six months have elapsed since the fay of the public notice, the object
belongs to the national treasury.
Article 115 After completing the investigation of a criminal case, an FTC staff
member shall report the results of the investigation to the Fair Trade
Commission.
Article 116 (1) If an accusation is filed pursuant to the provisions of Article 74,
paragraph (1) as a result of the investigation of a criminal case, if there are
any retained or seized objects, the Fair Trade Commission shall hand over the
objects together with the inventory thereof.
(2) If a retained or seized object set forth in the preceding paragraph is being
stored pursuant to the provisions of Article 113, the Fair Trade Commission
shall hand over the safekeeping receipt set forth in that Article and notify the
person storing the object pursuant to that Article to that effect.
(3) When a retained or seized object is handed over pursuant to the provisions of
the preceding two paragraphs, the object is deemed to have been seized
pursuant to the provisions of the Code of Criminal Procedure.
Article 117 The provisions of Chapters II to IV inclusive of the Administrative
Procedure Act do not apply to measures taken or administrative guidance
implemented by the Fair Trade Commission or an FTC staff member in
accordance with the provisions of this Chapter.
Article 118 Measures taken by the Fair Trade Commission or an FTC staff
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member pursuant to the provisions of this Chapter may not be appealed under
the Administrative Appeal Act.
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